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LIBRARY 

JNIVERSITV  OF 
CALIFORNIA 
SAN  DIEGO       j 


5' 


THE 


MISCELLANEOUS  WRITINGS, 


LITERARY,    CRITICAL,    JURIDICAL,   AND   POLITICAL, 


JOSEPH    STORY,   LL.D., 


NOW    FIRST    COLLECTED. 


Etenim  omnes  artes,  qua  ad  humanitatem  pertinent,  habent  quoddam  commune  vinculum. 

Cic.  Orat.  pro  Archia. 


BOSTON: 
JAMES    MUNROE    AND    COMPANY 


M  DCCC   XXXV 


ti^i 


Entered  according  to  the  Act  of  Congress,  in  the  year  1835, 

Br  James  Munroe  &  Co., 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


CAMBRIDGE    PRESS  : 
METCALF,    TORRY,    AND    BALLOU. 


TO 


THE    HONORABLE 

JOSI  AH     QUINCY,     L  L.    D., 

PRESIDENT    OF    HARVARD    UNIVERSITY. 

Sir, 
In  dedicating  this  volume  to  you,  I  may  (not  un- 
naturally) be  thought  to  indulge  a  wish  in  some  sort 
to  discharge  the  debt  of  gratitude,  which  I  owe  to 
the  institution,  over  which  you  preside,  for  the  many 
favors  bestowed  upon  me.  But,  gratifying  as  such  an 
expression  of  reverent  regard  for  our  Parent  Univer- 
sity would  at  all  times  be  to  me,  I  confess,  that  I  seek 
on  the  present  occasion  rather  to  offer  it  as  a  testimo- 
ny of  my  deep  sense  of  the  worth  of  your  personal 
character.  Few  men  have  acquired  so  just  a  distinc- 
tion for  unspotted  integrity,  fearless  justice,  consistent 
principles,  high  talents,  and  extensive  literature.  Still 
fewer  possess  the  merit  of  having  justified  the  public 
confidence  by  the  singleness  of  heart  and  purpose, 
with  which  they  have  devoted  themselves  to  the  best 
interests  of  society.  In  every  station,  to  which  you 
have  been  called  by  the  free  suffrages  of  the  people, 
you  have  discharged  its  duties  with  the  most  exem- 
plary ability,  fidelity,  and  conscientiousness.     In  your 


IV  DEDICATION. 

present  exalted  station,  to  which  you  were  invited  by 
the  combined  voice  of  the  guardians  of  the  University, 
under  the  most  flattering  circumstances,  every  act  of 
your  life  has  conduced  to  establish  the  importance 
and  wisdom  of  the  choice.  May  you  long  continue  to 
wear  its  honors  with  unsullied  dignity.  In  the  lan- 
guage of  your  own  favorite  Poet,  I  may  say,  Cura 
Patrum  .  .  .  tuas  virtutes  in  aevum  per  titulos  memo- 
resque  fastos  Eeternet. 

I  have  the  honor  to  remain,  most  truly, 

your  obliged  friend, 

JOSEPH  STORY. 

Cambridge,  Massachusetts,  October,  1835. 


PREFACE. 


The  present  volume  owes  its  existence  to  an 
unexpected  request  of  the  enterprising  publishers,  that 
I  would  permit  them  to  print  a  collection  of  my  mis- 
cellaneous writings.  To  such  a  request  I  could  not 
but  yield  a  ready  compliance  ;  and  my  chief  solicitude 
has  been  to  present  to  the  public  such  only  of  my  com- 
positions, as  might  be  deemed  least  unworthy  of  their 
favor.  Some  of  them  have  never  before  appeared  in 
print ;  and  in  regard  to  those,  which  have  so  appear- 
ed, I  have  availed  myself  of  the  present  opportunity  to 
correct  many  errors,  by  which  they  were  unavoidably 
blemished,  in  consequence  of  my  not  having  originally 
examined  the  proof-sheets,  as  they  passed  through  the 
press.  Although  I  am  fully  aware,  that  I  can  have 
little  claim  to  ask  the  public  indulgence  for  the  defects, 
which  may  be  discovered  in  these  literary  efforts,  I 
trust,  that  I  may  be  permitted  in  some  measure  to 
deprecate  the  severity  of  criticism  by  alluding  to  the 
fact,  that  they  were  all  written,  not  in  hours  of  lite- 
rary leisure  or  ease,  but  in  hours  oppressed  by 
the  weight  of  professional  business,  and  sometimes  by 
anxious  cares,  at  which  the  heart  sickens,  and  the 
spirit  faints. 

Cambridge,  October,  1S85. 


CONTENTS 


LITERARY   DISCOURSES. 

Discourse  pronounced  at  Cambridge,  before  the  Phi  Beta  Kappa  Society,  on 
the  Anniversary  Celebration,  August  31,  1826, 3 

Discourse  pronounced  at  the  Request  of  the  Essex  Historical  Society,  Sep- 
tember IS,  182S,  in  Commemoration  of  the  First  Settlement  of  Salem, 
Mass., 34 

Address  delivered  on  the  Consecration  of  the  Cemetery  at  Mount  Auburn, 
September  24,  1831, 88 

Discourse  pronounced  April  5,  1S33,  at  the  Obsequies  of  John  Hooker 
Ashmun,  Esq.,  Royal!  Professor  of  Law  in  Harvard  University,  .         100 

Discourse  delivered  before  the  Boston  Mechanics'  Institute,  at  the  Opening 
of  their  Annual  Course  of  Lectures,  November,   1829,  .         .         .         112 

Discourse  Introductory  to  a  Course  of  Lectures  before  the  Families  of  the 
Professors  in  Harvard  College,  delivered  in  Holden  Chapel,  December 
23,  1830, 134 

Lecture  on  the  Science  of  Government,  delivered  before  tho  American 
Institute  of  Instruction,  August,  1834, 147 

Lines,  written  on  the  Death  of  a  Daughter,  in  May,  1831,         ...         167 


BIOGRAPHICAL   SKETCHES. 

Sketch  of  the  Life  and  Character  of  the  Hon.  Samuel  Dexter,  LL.  D.,     .         173 

Memoir  of  the  Hon.  John  Marshall,  LL.  D.,  Chief  Justice  of  the  Su- 
preme Judicial  Court  of  the  United  States,  .....         183 

Sketch  of  the  Character  of  the  Hon.  Robert  Trimble,  Associate  Justice  of 
the  Supreme  Judicial  Court  of  the  United  States,         ....         201 

Sketch  of  the  Character  of  the  Hon.  Bushrod  Washington,  Associate  Justice 
of  the  Supreme  Judicial  Court  of  the  United  States,     ....         204 

Sketch  of  the  Character  of  the  Hon.  Isaac  Parker,  Chief  Justice  of  the  Su- 
preme Judicial  Court  of  Massachusetts, 208 

Sketch  of  the  Character  of  the  Hon.  William  Pinkney,  of  Maryland,       .         212 

Sketch  of  the  Character  of  the  Hon.  Thomas  A.  Emmet,     ....     217 


REVIEWS. 

Review  of  a  Course  of  Legal  Study  respectfully  addressed  to  the  Students 
of  Law  in  the  United  States,  by  David  Hoffman,  Professor  of  Law  in  the 
University  of  Maryland, 223 


VIII  CONTENTS. 

Review  of  tho  Laws  of  the  Sea  with  Reference  to  Maritime  Commerce 
during  Peace  and  War  —  from  the  German  of  Frederic  J.  Jacobsen, 
Advocate,  Altona,  1S15, 245 

Review  of  the  Reports  of  Cases  adjudged  in  the  Court  of  Chancery  of  New 
York,  by  William  Johnson,  Counsellor  at  Law.     Vols.  I,  II,  and  III,  268 

Review  of  a  Treatise  on  the  Law  of  Insurance,  by  Willard  Phillips,        .        294 

Review  of  a  General  Abridgment  and  Digest  of  American  Law,  with  Occa- 
sional Notes  and  Comments,  by  Nathan  Dane,LL.  D.,  Counsellor  at  Law,  321 


JURIDICAL   DISCOURSES   AND   ARGUMENTS. 

Charge  delivered  to  the  Grand  Jury  of  the  Circuit  Court  of  the  United 
States,  at  its  First  Session  in  Portland,  for  the  Judicial  District  of  Maine, 
May  8,  1820, ...        347 

Argument  delivered  before  the  Board  of  Overseers  of  Harvard  College,  in 
January,  1825,  upon  the  Discussion  of  the  Memorial  of  the  Professors  and 
Tutors  of  the  College,  claiming  a  Right  that  none  but  Resident  Instruct- 
ed in  the  College  should  be  chosen  or  deemed  Fellows  of  the  Corporation,  368 

Address  delivered  before  the  Members  of  the  Suffolk  Bar,  at  their  Anniver- 
sary, September  5,  1821,  at  Boston, 405 

Discourse  pronounced  upon  the  Inauguration  of  the  Author,  as  Dane  Profes- 
sor of  Law  in  Harvard  University,  August  25,  1S29,      ....         440 



POLITICAL  PAPERS. 

Report  on  the  Subject  of  an  Increase  of  the  Salaries  of  the  Justices  of  the 
Supreme  Judicial  Court  of  Massachusetts,  made  to  the  House  of  Represen- 
tatives of  that  State,  in  June,  1806,  479 

Memorial  of  the  Inhabitants  of  Salem,  Mass.,  addressed  to  the  President  and 
Congress  of  the  United  States,  Jan.,  1806,  relative  to  the  Infringements  of 
the  Neutral  Trade  of  the  United  States, 483 

Memorial  of  the  Merchants,  and  Others  interested  in  Commerce,  in  Salem, 
Mass.,  and  its  Vicinity,  addressed  to  the  Congress  of  the  United  States, 
June,  1820,  on  the  Discontinuance  of  Credits  on  Revenue  Bonds,  the  Abo- 
lition of  Drawbacks,  and  other  Restrictions  on  Commerce  proposed  in  Con- 
gress,  495 

Sketch  of  a  Speech  delivered  in  the  Convention  of  Massachusetts  assem- 
bled to  amend  the  Constitution,  in  November,  1820,  —  on  the  Question  of 
the  Proper  I3a.-is  for  the  Apportionment  of  the  State  Senators,        .         .         511 

Address  on  resigning  the  Speaker's  Chair,  in  the  House  of  Representatives 
of  Massachusetts,  January  17,  1812, 526 


LITERARY    DISCOURSES. 


DISCOURSE 


PRONOUNCED   AT   CAMBRIDGE,  BEFORE   THE   PHI    BETA  KAPPA    SOCIETY,  ON 
THE  ANNIVERSARY  CELEBRATION,  AUGUST  31,  I82G. 


Gentlemen, 
If  I  had  consulted   my  own   wishes,  I  should  not    have  pre- 
sumed  to  address  you  on  the  present  occasion.     The   habits  of 
professional  employment  rarely  admit  of  leisure  for  the  indulgence 
of  literary  taste.     And   in  a  science,   whose  mastery   demands   a 
whole   life  of  laborious  diligence,  whose  details  are  inexhaustible, 
and  whose  intricacies  task  the  most  acute  intellects,  it  would  be 
matter  of  surprise,  if  every  hour  withdrawn  from  its  concerns  did 
not  somewhat  put  at  hazard  the  success  of  its  votary.     Nor  can  it 
escape  observation,  how  much  the  technical  doctrines  of  a  juris- 
prudence, drawn  from  remote  antiquity,  and  expanding  itself  over 
the  business  of  many  ages,  must  have  a  tendency  to  chill  that  en- 
thusiasm, which  lends  encouragement  to  every  enterprise,  and  to 
obscure  those  finer  forms  of  thought,  which  give  to  literature  its 
lovelier,  I  may  say,  its  inexpressible  graces.     The  consciousness 
of  difficulties  of  this  sort  may  well  be  supposed  to  press  upon  every 
professional  mind.     They  can  be  overlooked  by  those  only,  whose 
youth  has  not  been  tried  in  the  hard  school  of  experience,  or  whose 
genius  gives  no  credit  to  impossibilities. 

I  have  not  hesitated,  however,  to  yield  to  your  invitation,  trust- 
ing to  that  indulgence,  which  has  not  hitherto  been  withheld  from 
well  meant  efforts,  and  not  unwilling  to  add  the  testimony  of  my 
own  example,  however  humble,  in  favor  of  the  claims  of  this 
society  to  the  services  of  all  its  members. 

We  live  in  an  extraordinary  age.  It  has  been  marked  by  events, 
which  will  leave  a  durable  impression  upon  the  pages  of  history 
by  their  own  intrinsic  importance.     But  they  will  be  read  with  far 


4  LITERARY    DISCOURSES. 

deeper  emotions  in  their  effects  upon  future  ages ;  in  their  conse- 
quences upon  the  happiness  of  whole  communities;  in  the  direct 
or  silent  changes  forced  by  them  into  the  very  structure  of  society ; 
in  the  establishment  of  a  new  and  mighty  empire,  the  empire  of 
public  opinion  :  in  the  operation  of  what  Lord  Bacon  has  charac- 
terized almost  as  supreme  power,  the  power  of  knowledge,  working 
its  way  to  universality,  and  interposing  checks  upon  government 
and  people,  by  means  gentle  and  decisive,  which  have  never  before 
been  fully  felt,  and  are  even  now,  perhaps,  incapable  of  being 
perfectly  comprehended. 

Other  ages  have  been  marked  by  brilliant  feats  in  arms.  Wars 
have  been  waged  for  the  best  and  for  the  worst  of  purposes.  The 
ambitious  conqueror  has  trodden  whole  nations  under  his  feet,  to 
satisfy  the  lust  of  power ;  and  the  eagles  of  his  victories  have 
stood  on  either  extreme  of  the  civilized  world.  The  barbarian  has 
broken  loose  from  his  northern  fastnesses,  and  overwhelmed  in  his 
progress  temples  and  thrones,  the  adorers  of  the  true  God,  and  the 
worshippers  of  idols.  Heroes  and  patriots  have  successfully  re- 
sisted the  invaders  of  their  country,  or  perished  in  its  defence ;  and 
in  each  way  have  given  immortality  to  their  exploits.  Kingdoms 
have  been  rent  asunder  by  intestine  broils,  or  by  struggles  for  free- 
dom. Bigotry  has  traced  out  the  march  of  its  persecutions  in 
footsteps  of  blood ;  and  superstition  employed  its  terrors  to  nerve 
the  arm  of  the  tyrant,  or  immolate  his  victims.  There  have  been 
ancient  leagues  for  the  partition  of  empires,  for  the  support  of 
thrones,  for  the  fencing  out  of  human  improvement,  and  for  the 
consolidation  of  arbitrary  power.  There  have,  too,  been  bright 
spots  on  the  earth,  where  the  cheering  light  of  liberty  shone  in 
peace ;  where  learning  unlocked  its  stores  in  various  profusion ; 
where  the  arts  unfolded  themselves  in  every  form  of  beauty  and 
grandeur ;  where  literature  loved  to  linger  in  academic  shades,  or 
enjoy  the  public  sunshine  ;  where  song  lent  new  inspiration  to  the 
temple  ;  where  eloquence  alternately  consecrated  the  hall  of  legis- 
lation, and  astonished  the  forum  with  its  appeals. 

We  may  not  assert,  that  the  present  age  can  lay  claim  to  the 
production  of  any  one  of  the  mightiest  efforts  of  human  genius. 
Homer  and  Virgil,  and  Shakspeare  and  Milton  were  of  other  days, 
and  yet  stand  unrivalled  in  song.  Time  has  not  inscribed  upon  the 
sepulchre  of  the  dead  any  nobler  names  in  eloquence  than  De- 
mosthenes and  Cicero.  Who  has  outdone  the  chisel  of  Phidias, 
or  the  pencil  of  Michael  Angelo,  and  llaffaelle  ?     Where  are  the 


PHI    BETA    KAPPA    DISCOURSE.  5 

monuments  of  our  day,  whose  architecture  dares  to  contend  with 
the  Doric,  Ionic,  or  Corinthian  of  Greece,  or  even  with  the  Com- 
posite or  Gothic  of  later  times  ?  History  yet  points  to  the  preg- 
nant though  brief  text  of  Tacitus,  and  acknowledges  no  finer 
models  than  those  of  antiquity.  The  stream  of  a  century  has 
swept  by  the  works  of  Locke  and  Newton  ;  yet  they  still  stand 
alone  in  unapproached,  in  unapproachable  majesty. 

Nor  may  we  pronounce,  that  the  present  age  by  its  collective 
splendor  in  arts  and  arms  casts  into  shade  all  former  epochs.  The 
era  of  Pericles  witnessed  a  combination  of  talents  and  acquire- 
ments, of  celebrated  deeds  and  celebrated  works,  which  the  lapse 
of  twenty-two  centuries  has  left  unobscured.  Augustus,  surveying 
his  mighty  empire,  could  scarcely  contemplate  with  more  satis- 
faction the  triumph  of  his  arms,  than  the  triumph  of  the  philosophy 
and  literature  of  Rome.  France  yet  delights  to  dwell  on  the 
times  of  Lewis  the  Fourteenth,  as  the  proudest  in  her  annals ;  and 
England,  with  far  less  propriety,  looks  back  upon  the  reign  of 
Queen  Anne  for  the  best  models  of  her  literary  excellence. 

But,  though  we  may  not  arrogate  to  ourselves  the  possession  of 
the  first  genius,  or  the  first  era  in  human  history,  let  it  not  be 
imagined,  that  we  do  not  live  in  an  extraordinary  age.  It  is  im- 
possible to  look  around  us  without  alternate  emotions  of  exultation 
and  astonishment.  What  shall  we  say  of  one  revolution,  which 
created  a  nation  out  of  thirteen  feeble  colonies,  and  founded  the 
empire  of  liberty  upon  the  basis  of  the  perfect  equality  in  rights 
and  representation  of  all  its  citizens  ?  which  commenced  in  a  strug- 
gle by  enlightened  men  for  principles,  and  not  for  places  ;  and  in  its 
progress  and  conclusion  exhibited  examples  of  heroism,  patriotic 
sacrifices,  and  disinterested  virtue,  which  have  never  been  surpassed 
in  the  most  favored  regions  ?  What  shall  we  say  of  this  nation, 
which  has  in  fifty  years  quadrupled  its  population,  and  spread  itself 
from  the  Atlantic  to  the  Rocky  Mountains,  not  by  the  desolations 
of  successful  war,  but  by  the  triumphant  march  of  industry  and 
enterprise  ?  What  shall  we  say  of  another  revolution,  which  shook 
Europe  to  its  centre,  overturned  principalities  and  thrones,  demol- 
ished oppressions,  whose  iron  had  for  ages  entered  into  the  souls  of 
their  subjects  ;  and,  after  various  fortunes  of  victory  and  defeat,  of 
military  despotism  and  popular  commotion,  ended  at  last  in  the 
planting  of  free  institutions,  free  tenures,  and  representative  gov- 
ernment in  the  very  soil  of  absolute  monarchy  ?  What  shall  we 
say  of  another  revolution,  or  rather  series  of  revolutions,  which  has 


6  LITERARY    DISCOURSES. 

restored  to  South  America  the  independence,  torn  from  her  three 
centuries  ago  by  the  force  or  by  the  fraud  of  those  nations,  whose 
present  visitations  bespeak  a  Providence,  which  superintends  and 
measures  out  at  awful  distances  its  rewards  and  its  retributions  ? 
She  has  risen,  as  it  were,  from  the  depths  of  the  ocean,  where  she 
had  been  buried  for  ages.  Her  shores  no  longer  murmur  with  the 
hoarse  surges  of  her  unnavigated  waters,  or  echo  the  jealous  foot- 
steps of  her  armed  oppressors.  Her  forests  and  her  table  lands, 
her  mountains  and  her  vallies  gladden  with  the  voices  of  the  free. 
She  welcomes  to  her  ports  the  whitening  sails  of  commerce.  She 
feels,  that  the  treasures  of  her  mines,  the  broad  expanse  of  her 
rivers,  the  beauty  of  her  lakes,  the  grandeur  of  her  scenery,  the 
products  of  her  fertile  and  inexhaustible  soil,  are  no  longer  the  close 
domain  of  a  distant  sovereign,  but  the  free  inheritance  of  her  own 
children.  She  sees,  that  these  are  to  bind  her  to  other  nations  by 
ties,  which  outlive  all  compacts  and  all  dynasties,  by  ties  of  mutual 
sympathy,  mutual  equality,  and  mutual  interest. 

But  such  events  sink  into  nothing,  compared  with  the  great 
moral,  political,  and  literary  revolutions,  by  which  they  have  been 
accompanied.  Upon  some  of  these  topics,  I  may  not  indulge 
myself  even  for  a  moment.  They  have  been  discussed  here,  and 
in  other  places,  in  a  manner,  which  forbids  all  hope  of  more  com- 
prehensive illustration.  They  may,  indeed,  be  still  followed  out ; 
but  whoever  dares  the  difficulties  of  such  a  task,  will  falter  with 
unequal  footsteps.  ♦ 

What  I  propose  to  myself  on  the  present  occasion  is  of  a  far 
more  limited  and  humble  nature.  It  is,  to  trace  out  some  of  the 
circumstances  of  our  age,  which  connect  themselves  closely  with 
the  cause  of  science  and  letters  ;  to  sketch  here  and  there  a  light 
and  shadow  of  our  days  ;  to  look  somewhat  at  our  own  prospects 
and  attainments ;  and  thus  to  lay  before  you  something  for  re- 
flection, for  encouragement,  and  for  admonition. 

One  of  the  most  striking  characteristics  of  our  age,  and  that, 
indeed,  which  has  worked  deepest  in  all  the  changes  of  its  fortunes 
and  pursuits,  is  the  general  diffusion  of  knowledge.  This  is  em- 
phatically the  age  of  reading.  In  other  times  this  was  the  privilege 
of  the  few ;  in  ours,  it  is  the  possession  of  the  many.  Learning 
once  constituted  the  accomplishment  of  those  in  the  higher  orders 
of  society,  who  had  no  relish  for  active  employment,  and  of  those, 
whose  monastic  lives  and  religious  profession  sought  to  escape  from 


PHI    BETA    KAPPA    DISCOURSE.  i 

the  weariness  of  their  common  duties.  Its  progress  may  be  said 
to  have  been  gradually  downwards  from  the  higher  to  the  middle 
classes  of  society.  It  scarcely  reached  at  all,  in  its  joys  or  its 
sorrows,  in  its  instructions  or  its  fantasies,  the  home  of  the  peasant 
and  artisan.  It  now  radiates  in  all  directions  ;  and  exerts  its  cen- 
tral force  more  in  the  middle  than  in  any  other  class  of  society. 
The  means  of  education  were  formerly  within  the  reach  of  few. 
It  required  wealth  to  accumulate  knowledge.  The  possession  of 
a  library  was  no  ordinary  achievement.  The  learned  leisure  of  a 
fellowship  in  some  university  seemed  almost  indispensable  for  any 
successful  studies  ;  and  the  patronage  of  princes  and  courtiers  was 
the  narrow  avenue  to  public  favor.  I  speak  of  a  period  at  little 
more  than  the  distance  of  two  centuries  ;  not  of  particular  instances, 
but  of  the  general  cast  and  complexion  of  life. 

The  principal  cause  of  this  change  is  to  be  found  in  the  freedom 
of  the  press,  or  rather  in  this,  cooperating  with  the  cheapness  of  the 
press.      It  has  been   aided   also  by   the   system  of  free   schools, 
wherever  it  has  been  established  ;  by  that  liberal  commerce,  which 
connects  by  golden  chains  the  interests  of  mankind  ;  by  that  spirit 
of  inquiry,   which  Protestantism    awakened   throughout  Christian 
Europe  ;  and  above  all  by  those  necessities,  which  have  compelled 
even  absolute  monarchs  to  appeal  to  the   patriotism  and  common 
sentiments  of  their  subjects.    Little  more  than  a  century  has  elapsed 
since  the  press  in  England  was  under  the  control  of  a  licenser ;  and 
within  our  own  days  only  has  it  ceased  to  be  a  contempt,  punisha- 
ble by  imprisonment,  to  print  the  debates  of  Parliament.     We  all 
know  how  it  still  is  on  the  continent  of  Europe.     It  either  speaks 
in  timid  under-tones,  or  echoes  back  the  prescribed  formularies  of 
the  government.     The  moment  publicity  is  given  to  affairs  of  state, 
they  excite  every  where  an  irresistible  interest.     If  discussion  be 
permitted,  it  will  soon  be  necessary  to  enlist  talents  to  defend,  as 
well  as  talents  to  devise  measures.     The  daily  press  first  instructed 
men  in  their  wants,  and  soon  found,  that  the  eagerness  of  curiosity 
outstripped  the  power  of  gratifying  it.     No  man  can  now  doubt  the 
fact,  that  wherever  the  press  is  free,  it  will  emancipate  the  people  ; 
wherever  knowledge  circulates  unrestrained,  it  is  no  longer  safe  to 
oppress  ;  wherever  public  opinion  is   enlightened,  it  nourishes  an 
independent,  masculine,  and  healthful  spirit.     If  Faustus  were  now 
living,  he  might  exclaim  with   all   the   enthusiasm  of  Archimedes, 
and  with  a  far  nearer  approach  to  the  truth,  Give  me,  where  I  may 
place  a  free  press,  and  I  will  shake  the  world. 


8  LITERARY    DISCOURSES. 


One  interesting  effect,  which  owes  its  origin  to  this  universal  love 
and  power  of  reading,  is  felt  in  the  altered  condition  of  authors 
themselves.  They  no  longer  depend  upon  the  smiles  of  a  favored 
few.  The  patronage  of  the  great  is  no  longer  submissively  en- 
treated, or  exultingly  proclaimed.  Their  patrons  are  the  public  ; 
their  readers  are  the  civilized  world.  They  address  themselves, 
not  to  the  present  generation  alone,  but  aspire  to  instruct  posterity. 
No  blushing  dedications  seek  an  easy  passport  to  fame,  or  flatter 
the  perilous  condescension  of  pride.  No  illuminated  letters  flourish 
on  the  silky  page,  asking  admission  to  the  courtly  drawingroom. 
Authors  are  no  longer  the  humble  companions  or  dependents  of  the 
nobility  :  but  they  constitute  the  chosen  ornaments  of  society,  and 
are  welcomed  to  the  gay  circles  of  fashion  and  the  palaces  of  princes. 
Theirs  is  no  longer  an  unthrifty  vocation,  closely  allied  to  penury ; 
but  an  elevated  profession,  maintaining  its  thousands  in  lucrative 
pursuits.  It  is  not  with  them,  as  it  was  in  the  days  of  Milton, 
whose  immortal  "  Paradise  Lost  "  drew  five  sterling  pounds,  with 
a  contingent  of  five  more,  from  the  reluctant  bookseller. 

My  Lord  Coke  would  hardly  find  good  authority  in  our  day  for 
his  provoking  commentary  on  the  memorable  statute  of  the  fourth 
Henry,  which  declares  that  "  none  henceforth  shall  use  to  multiply 
gold  or  silver,  or  use  the  craft  of  multiplication  ",  in  which  he 
gravely  enumerates  five  classes  of  beggars,  ending  the  catalogue  in 
his  own  quaint  phraseology  with  "  poetasters,"  and  repeating,  for 
the  benefit  of  young  apprentices  of  the  law,  the  sad  admonition, 

"  Saepe  pater  dixit,  Studium  quid  inutile  tentas  ? 
Majonides  nullas  ipse  reliquit  opes." 

There  are  certainly  among  us  those,  who  are  within  the  penalty 
of  this  prohibition,  if  my  Lord  Coke's  account  of  the  matter  is  to 
be  believed ;  for  they  are  in  possession  of  what  he  defines  to  be  "  a 
certain  subtil  and  spiritual  substance  extracted  out  of  things," 
whereby  they  transmute  many  things  into  gold.  I  am  indeed  afraid, 
that  the  Magician  of  Abbotsford  is  accustomed  to  "  use  the  craft  of 
multiplication "  ;  and  most  of  us  know,  to  our  cost,  that  he  has 
changed  many  strange  substances  into  very  gold  and  very  silver. 
Yet,  even  if  he  be  an  old  offender  in  this  way,  as  is  shrewdly  sus- 
pected, there  is  little  danger  of  his  conviction  in  this  liberal  age  ; 
since,  though  he  gains  by  every  thing  he  part-  with,  we  are  never 
willing  to  part  with  any  thing  we  receive  from  him. 


PHI    BETA    KAPPA    DISCOURSE.  9 

The  rewards  of  authorship  are  now  almost  as  sure  and  regular, 
as  those  of  any  other  profession.  There  are,  indeed,  instances  of 
wonderful  success,  and  sad  failure  ;  of  genius  pining  in  neglect ;  of 
labor  bringing  nothing  but  sickness  of  the  heart ;  of  fruitless  enter- 
prise, baffled  in  every  adventure  ;  of  learning,  waiting  its  appointed 
time  to  die  in  patient  suffering.  But  this  is  the  lot  of  some  in  all 
times.  Disappointment  crowds  fast  upon  human  footsteps,  in  what- 
ever paths  they  tread.  Eminent  good  fortune  is  a  prize  rarely 
given  even  to  the  foremost  in  the  race.  And,  after  all,  he,  who  has 
read  human  life  most  closely,  knows,  that  happiness  is  not  the  con- 
stant attendant  of  the  highest  public  favor ;  and  that  it  rather 
belongs  to  those,  who,  if  they  seldom  soar,  seldom  fall. 

Scarcely  is  a  work  of  real  merit  dry  from  the  English  press, 
before  it  wings  its  way  to  both  the  Indies  and  Americas.  It  is 
found  in  the  most  distant  climates,  and  the  most  sequestered  re- 
treats. It  charms  the  traveller,  as  he  sails  over  rivers  and  oceans. 
It  visits  our  lakes  and  our  forests.  It  kindles  the  curiosity  of  the 
thick-breathing,  city,  and  cheers  the  log  hut  of  the  mountaineer. 
The  Lake  of  the  Woods  resounds  with  the  minstrelsy  of  our  mother 
tongue,  and  the  plains  of  Hindoostan  are  tributary  to  its  praise. 
Nay  more,  what  is  the  peculiar  pride  of  our  age,  the  Bible  may 
now  circulate  its  consolations  and  instructions  among  the  poor  and 
forlorn  of  every  land,  in  their  native  dialect.  Such  is  the  triumph 
of  letters  ;  such  is  the  triumph  of  Christian  benevolence. 

With  such  a  demand  for  books,  with  such  facilities  of  intercourse, 
it  is  no  wonder,  that  reading  should  cease  to  be  a  mere  luxury,  and 
should  be  classed  among  the  necessaries  of  life.  Authors  may 
now,  with  a  steady  confidence,  boast,  that  they  possess  a  hold  on 
the  human  mind,  which  grapples  closer  and  mightier  than  all  others. 
They  may  feel  sure,  that  every  just  sentiment,  every  enlightened 
opinion,  every  earnest  breathing  after  excellence,  will  awaken 
kindred  sympathies,  from  the  rising  to  the  setting  sun. 

Nor  should  it  be  overlooked,  what  a  beneficial  impulse  has  been 
thus  communicated  to  education  among  the  female  sex.  If  Chris- 
tianity may  be  said  to  have  given  a  permanent  elevation  to  woman, 
as  an  intellectual  and  moral  being,  it  is  as  true,  that  the  present 
age,  above  all  others,  has  given  play  to  her  genius,  and  taught  us 
to  reverence  its  influence.  It  was  the  fashion  of  other  times  to 
treat  the  literary  acquirements  of  the  sex,  as  starched  pedantry,  or 
vain  pretensions  ;  to  stigmatize  them  as  inconsistent  with  those 
domestic  affections  and  virtues,  which  constitute  the  charm  of 
2 


10  LITERARY    DISCOURSES. 

society.  We  had  abundant  homilies  vead  upon  their  amiable  weak- 
nesses and  sentimental  delicacy,  upon  their  timid  gentleness  and 
submissive  dependence  ;  as  if  to  taste  the  fruit  of  knowledge  were 
a  deadly  sin,  and  ignorance  were  the  sole  guardian  of  innocence. 
Their  whole  lives  were  "sicklied  o'er  with  the  pale  cast  of  thought;" 
and  concealment  of  intellectual  power  was  often  resorted  to,  to 
escape  the  dangerous  imputation  of  masculine  strength.  In  the 
higher  walks  of  life,  the  satirist  was  not  without  color  for  the  sug- 
gestion, that  it  was 

"  A  youth  of  folly,  an  old  age  of  cards ; " 

and  that  elsewhere,  "  most  women  had  no  character  at  all,"  beyond 
that  of  purity  and  devotion  to  their  families.  Admirable  as  are 
these  qualities,  it  seemed  an  abuse  of  the  gifts  of  Providence  to 
deny  to  mothers  the  power  of  instructing  their  children,  to  wives 
the  privilege  of  sharing  the  intellectual  pursuits  of  their  husbands, 
to  sisters  and  daughters  the  delight  of  ministering  knowledge  in  the 
fireside  circle,  to  youth  and  beauty  the  charm  of  refined  sense,  to 
age  and  infirmity  the  consolation  of  studies,  which  elevate  the  soul 
and  gladden  the  listless  hours  of  despondency. 

These  things  have  in  a  great  measure  passed  away.  The  preju- 
dices, which  dishonored  the  sex,  have  yielded  to  the  influence  of 
truth.  By  slow  but  sure  advances  education  has  extended  itself 
through  all  ranks  of  female  society.  There  is  no  longer  any  dread, 
lest  the  culture  of  science  should  foster  that  masculine  boldness  or 
restless  independence,  which  alarms  by  its  sallies,  or  wounds  by  its 
inconsistencies.  We  have  seen,  that  here,  as  every  where  else, 
knowledge  is  favorable  to  human  virtue  and  human  happiness ;  that 
the  refinement  of  literature  adds  lustre  to  the  devotion  of  piety  ; 
that  true  learning,  like  true  taste,  is  modest  and  unostentatious ; 
that  grace  of  manners  receives  a  higher  polish  from  the  discipline 
of  the  schools  ;  that  cultivated  genius  sheds  a  cheering  light  over 
domestic  duties,  and  its  very  sparkles,  like  those  of  the  diamond, 
attest  at  once  its  power  and  its  purity.  There  is  not  a  rank  of 
female  society,  however  high,  which  does  not  now  pay  homage  to 
literature,  or  that  would  not  blush  even  at  the  suspicion  of  that 
ignorance,  which  a  half  century  ago  was  neither  uncommon  nor 
discreditable.  There  is  not  a  parent,  whose  pride  may  not  glow  at 
the  thought,  that  his  daughter's  happiness  is  in  a  great  measure 
within  her  own  command,  whether  she  keeps  the  cool  sequestered 
vale  of  life,  or  visits  the  bu^y  walks  of  fashion. 


PHI    BETA    KAPPA    DISCOURSE.  11 

A  new  path  is  thus  open  for  female  exertion,  to  alleviate  the 
pressure  of  misfortune,  without  any  supposed  sacrifice  of  dignity  or 
modesty.  Man  no  longer  aspires  to  an  exclusive  dominion  in 
authorship.  He  has  rivals  or  allies  in  almost  every  department  of 
knowledge ;  and  they  are  to  be  found  among  those,  whose  elegance 
of  manners  and  blamelessness  of  life  command  his  respect,  as  much 
as  their  talents  excite  his  admiration.  Who  is  there,  that  does  not 
contemplate  with  enthusiasm  the  precious  Fragments  of  Elizabeth 
Smith,  the  venerable  learning  of  Elizabeth  Carter,  the  elevated 
piety  of  Hannah  More,  the  persuasive  sense  of  Mrs.  Barbauld,  the 
elegant  Memoirs  of  her  accomplished  niece,  the  bewitching  fictions 
of  Madame  D'Arblay,  the  vivid,  picturesque,  and  terrific  imagery 
of  Mrs.  Radcliffe,  the  glowing  poetry  of  Mrs.  Hemans,  the  match- 
less wit,  the  inexhaustible  conversations,  the  fine  character  painting, 
the  practical  instructions  of  Miss  Edgeworth,  the  great  known, 
standing,   in    her   own  department,  by  the  side  of  the    great 

UNKNOWN  ? 

Another  circumstance,  illustrative  of  the  character  of  our  age,  is 
the  bold  and  fearless  spirit  of  its  speculations.  Nothing  is  more 
common,  in  the  history  of  mankind,  than  a  servile  adoption  of 
received  opinions,  and  a  timid  acquiescence  in  whatever  is  estab- 
lished. It  matters  not,  whether  a  doctrine  or  institution  owes  its 
existence  to  accident  or  design,  to  wisdom,  or  ignorance,  or  folly, 
there  is  a' natural  tendency  to  give  it  an  undue  value  in  proportion 
to  its  antiquity.  What  is  obscure  in  its  origin  warms  and  gratifies 
the  imagination.  What  in  its  progress  has  insinuated  itself  into  the 
general  habits  and  manners  of  a  nation,  becomes  imbedded  in  the 
solid  mass  of  society.  It  is  only  at  distant  intervals,  from  an  aggre- 
gation of  causes,  that  some  stirring  revolution  breaks  up  the  old 
foundations,  or  some  mighty  genius  storms  and  overthrows  the 
entrenchments  of  error.  Who  would  believe,  if  history  did  not 
record  the  fact,  that  the  metaphysics  of  Aristotle,  or  rather  the 
misuse  of  his  metaphysics,  held  the  human  mind  in  bondage  for 
two  thousand  years  ?  that  Galileo  was  imprisoned  for  proclaiming 
the  true  theory  of  the  solar  system  ?  that  the  magnificent  discove- 
ries of  Sir  Isaac  Newton  encountered  strong  opposition  from  philoso- 
phers ?  that  Locke's  Essay  on  the  Human  Understanding  found  its 
way  with  infinite  difficulty  into  the  studies  of  the  English  Univer- 
sities ?  that  Lord  Bacon's  method  of  induction  never  reached  its 
splendid  triumphs  until  our  day  ?  that  the  doctrine  of  the  divine 
right  of  kings,  and  the  absolute  allegiance  of  subjects,  constituted 


12  LITERARY    DISCOURSES. 

nearly  the  whole  theory  of  government,  from  the  fall  of  the  Roman 
Republic  to  the  seventeenth  century  ?  that  Christianity  itself  was 
overlaid,  and   almost  buried,  for  many    centuries,   by   the   dreamy 
comments  of  monks,  the  superstitions  of  fanatics,  and  the  traditions 
of  the  Church?  that  it  was  an  execrable  sin,  throughout  Christendom, 
to  read  and  circulate  the   Holy   Scriptures   in   the  vulgar  tongue  ? 
Nay,  that  it  is  still  a  crime  in  some  nations,  of  which  the  Inquisition 
would  take  no  very   indulgent  notice,  even   if  the   Head   of  the 
Catholic  Church  should  not  feel   that  Bible  Societies    deserve  his 
denunciation  ?     Even  the  great  reformers  of  the  Protestant  Church 
left  their  work  but  half  done,  or  rather  came   to  it  with  notions  far 
too   limited   for  its  successful   accomplishment.      They   combated 
errors  and  abuses,  and  laid  the  broad  foundations  of  a  more  rational 
faith.     But  they  wTere  themselves  insensible  to  the  just  rights  and 
obligations  of  religious  inquiry.     They  thought  all  error  intolerable  ; 
but  they  forgot,  in  their  zeal,  that  the  question,  what  was  truth,  was 
open  to  all  for  discussion.     They  assumed  to  themselves  the  very 
infallibility,  which  they  rebuked   in  the   Romish  Church  ;  and  as 
unrelentingly  persecuted  heresies  of  opinion,  as  those   who  had  sat 
for  ages  in  the  judgment-seat  of  St.  Peter.    They  allowed,  indeed, 
that  all  men  had  a  right  to  inquire  ;  but  they  thought,  that  all  must, 
if  honest,  come  to  the  same  conclusion  with  themselves  ;  that  the 
full  extent  of  Christian  liberty  was  the   liberty  of  adopting  those 
opinions,  which  they  promulgated  as  true.     The  unrestrained  right 
of  private  judgment,  the  glorious  privilege  of  a  free  conscience,  as 
now  established  in  this  favored  land,  was  farther  from  their  thoughts 
even  than  Popery  itself.    I  would  not  be  unjust  to  these  great  men. 
The  fault  was  less  theirs  than  that  of  the  age   in  which  they  lived. 
They  partook  only  of  that  spirit  of  infirmity,  which  religion  itself 
may  not  wholly  extinguish  in  its  sincere,  but  over  zealous  votaries. 
It  is  their  glory  to  have  laid  the  deep,  and,  I  trust,  the  imperishable 
foundations  of  Protestantism.     May  it  be  ours  to  finish  the  work, 
as  they  would  have  done  it,  if  they   had   been   permitted  to  enjoy 
the  blessed   light   of  these   latter  times.     But  let  not  Protestants 
boast  of  their  justice,  or  their  charity,  while  they  continue  to  deny 
an  equality  of  rights  to  the  Catholics. 

The  progress  of  the  spirit  of  free  inquiry  cannot  escape  the 
observation  of  the  most  superficial  examiner  of  history.  The 
press,  by  slow  but  firm  steps,  first  felt  its  way,  and  began  its 
attacks  upon  the  outworks  of  received  opinions.  One  error  after 
another  silently  crumbled  into  the  dust,   until  success  seemed  to 


PHI    BETA    KAPPA    DISCOURSE.  13 

justify  the  boldest  experiments.  Opinions  in  science,  in  physic,  in 
philosophy,  in  morals,  in  religion,  in  literature  have  been  subjected 
to  the  severest  scrutiny ;  and  many,  which  had  grown  hoary  under 
the  authority  of  ages,  have  been  quietly  conveyed  to  their  last 
home,  with  scarcely  a  solitary  mourner  to  grace  their  obsequies. 
The  contest,  indeed,  between  old  and  new  opinions  has  been,  and 
continues  to  be,  maintained  with  great  obstinacy  and  ability  on  all 
sides,  and  has  forced  even  the  sluggish  into  the  necessity  of  thinking 
for  themselves.  Scholars  have  been  driven  to  arm  themselves  for 
attack,  as  well  as  for  defence ;  and  in  a  literary  warfare,  nearly 
universal,  have  been  obliged  to  make  their  appeals  to  the  living 
judgment  of  the  public  for  protection,  as  well  as  for  encourage- 
ment. 

The  effects  of  this  animated  and  free  discussion  have,  in  general, 
been  very  salutary.  There  is  not  a  single  department  of  life, 
which  has  not  been  invigorated  by  its  influence,  nor  a  single  pro- 
fession, which  has  not  partaken  of  its  success. 

In  jurisprudence,  which  reluctantly  admits  any  new  adjunct,  and 
counts  in  its  train  a  thousand  champions  ready  to  rise  in  defence  of 
its  formularies  and  technical  rules,  the  victory  has  been  brilliant  and 
decisive.  The  civil  and  the  common  law  have  yielded  to  the 
pressure  of  the  times,  and  have  adopted  much,  which  philosophy 
and  experience  have  recommended,  although  it  stood  upon  no  text 
of  the  Pandects,  and  claimed  no  support  from  the  feudal  polity. 
Commercial  law,  at  least  so  far  as  England  and  America  are  con- 
cerned, is  the  creation  of  the  eighteenth  century.  It  started  into 
life  with  the  genius  of  Lord  Mansfield,  and  gathering  in  its  course 
whatever  was  valuable  in  the  earlier  institutes  of  foreign  countries, 
has  reflected  back  upon  them  its  own  superior  lights,  so  as  to  be- 
come the  guide  and  oracle  of  the  commercial  world.  If  my  own 
feelings  do  not  mislead  me,  the  profession  itself  has  also  acquired 
a  liberality  of  opinion,  a  comprehensiveness  of  argumentation,  a 
sympathy  with  the  other  pursuits  of  life,  and  a  lofty  eloquence, 
which,  if  ever  before,  belonged  to  it  only  in  the  best  days  of  the 
best  orators  of  antiquity.  It  was  the  bitter  scoff  of  other  times, 
approaching  to  the  sententiousness  of  a  proverb,  that  to  be  a  good 
lawyer  was  to  be  an  indifferent  statesman.  The  profession  lias 
outlived  the  truth  of  the  sarcasm.  At  the  present  moment  Eng- 
land may  count  lawyers  among  her  most  gifted  statesmen ;  and  in 
America,  I  need  but  appeal  to  those  who  hear  me  for  the  fact, 
our  most  eminent  statesmen  have  been,  nay,  still  are,  the  brightest 
ornaments  of  our  bar. 


14  LITERARY    DISCOURSES. 

The  same  improving  spirit  lias  infused  itself  into  the  body  of 
legislation  and  political  economy.  I  may  not  adventure  upon  this 
extensive  topic.  J3nt  I  would  for  a  moment  advert  to  the  more 
benignant  character  manifested  in  the  criminal  law.  Harsh  and 
vindictive  punishments  have  been  discountenanced  or  abolished. 
The  sanguinary  codes,  over  which  humanity  wept  and  philosophy 
shuddered,  have  felt  the  potent  energy  of  reform,  and  substituted 
for  agonizing  terror  the  gentle  spirit  of  mercy.  America  has  taken 
the  lead  in  this  glorious  march  of  philanthropy,  under  the  banners 
of  that  meek  sect,  which  does  good  by  stealth,  and  blushes  to  find 
it  fame.  There  are  not  in  the  code  of  the  Union,  and  probably  not 
in  that  of  any  single  State,  more  than  ten  crimes,  to  which  the 
sober  judgment  of  legislation  now  affixes  the  punishment  of  death. 
England,  indeed,  counts  in  her  bloody  catalogue  more  than  one 
hundred  and  sixty  capital  offences ;  but  the  dawn  of  a  brighter  day 
is  opening  upon  her.  After  years  of  doubtful  struggle,  the  meliora- 
tions suggested  by  the  lamented  Sir  Samuel  Romilly  have  forced 
their  way  through  Parliament  to  the  throne  ;  and  an  enlightened 
ministry  is  redeeming  her  from  this  reproach  upon  her  national 
character. 

In  medicine,  throughout  all  its  branches,  more  extraordinary 
changes  have  taken  place.  Here,  indeed,  inductive  philosophy 
looks  for  some  of  its  fairest  trophies.  In  anatomy,  in  physiology, 
in  pharmacy,  in  therapeutics,  instructed  skill,  patient  observation, 
and  accurate  deduction  have  been  substituted  for  vague  conjecture, 
and  bold  pretension.  Instead  of  mystical  compounds,  and  nos- 
trums, and  panaceas,  science  has  introduced  its  powerful  simples, 
and  thus  given  energy  and  certainty  to  practice.  We  dream  no 
longer  over  the  favorite  theories  of  the  art,  succeeding  each  other 
in  endless  progression.  We  are  content  to  adopt  a  truer  course ; 
to  read  nature  in  her  operations  ;  to  compel  her  to  give  up  her 
secrets  to  the  expostulations  of  her  ministers ;  and  to  answer  the 
persevering  interrogatories  of  her  worshippers.  Chemistry,  by  its 
brilliant  discoveries  and  careful  analysis,  has  unfolded  laws,  which 
surprise  us  by  their  simplicity,  as  wrell  as  by  the  extent  of  their 
operations.  By  its  magic  touch  the  very  elements  of  things  seem 
decomposed,  and  to  stand  in  disembodied  essences  before  us. 

In  theology  a  new  era  has  commenced.  From  the  days  of 
Grotius  almost  to  our  own,  a  sluggish  indifference  to  critical  learn- 
ing fastened  upon  most  of  those  who  administered  the  high  solem- 
nities of  religion.     Here  and  there,  indeed,  a  noble  spirit  was  seen, 


PHI    BETA    KAPPA    DISCOURSE.  15 

like  Old  Mortality,  wiping  away  the  ancient  dust  and  retracing  the 
fading  lines,  and  in  his  zeal  for  truth  undergoing  almost  a  moral 
martyrdom.  But  the  mass  of  professed  theologians  slumbered  over 
the  received  text  in  easy  security,  or  poured  the  distillations  of  one 
commentary  into  another,  giving  little  improvement  to  the  flavor, 
and  none  to  the  substance.  They  were  at  length  roused  by  a  spirit 
of  another  sort,  which  by  ridicule,  or  argument,  or  denunciation  of 
abuses,  was  attempting  to  sap  the  very  foundations  of  Christianity. 
It  made  its  approaches  in  silence,  until  it  had  attained  strength 
enough  for  an  open  assault ;  and  at  last,  in  a  moment  of  political 
revolution,  it  erected  the  standard  of  infidelity  in  the  very  centre  of 
Christendom.  Fortunately,  the  critical  studies  of  the  scholars  of 
the  old  world  enabled  them  to  meet  the  difficulties  of  the  occasion. 
The  immense  collations  of  manuscripts  and  various  readings  by 
such  men  as  Mill,  and  Wetstein,  and  Kennicott,  prepared  the  way 
for  a  more  profound  investigation  of  the  genuineness  and  authen- 
ticity of  the  Scriptures.  And  the  sober  sense  and  unwearied 
diligence  of  our  age  have  given  to  the  principles  of  interpretation 
an  accuracy  and  authority,  to  biblical  researches  a  dignity  and  cer- 
tainty, to  practical  as  well  as  doctrinal  theology  a  logic  and  illus- 
tration, unparalleled  in  the  annals  of  the  Church.  If  Christianity 
has  been  assailed  in  our  day  with  uncommon  ability,  it  has  never 
been  defended  with  more  various  learning.  If  it  has  surrendered 
here  and  there  an  interpolated  passage,  it  has  placed  almost  beyond 
the  reach  of  doubt  the  general  integrity  of  the  text.  If  it  has 
ceased  in  some  favored  lands  to  claim  the  civil  arm  for  its  protec- 
tion, it  has  established  itself  in  the  hearts  of  men,  by  all,  which 
genius  could  bring  to  illumine,  or  eloquence  to  grace  its  sublime 
truths. 

In  pure  mathematics  and  physical  science  there  has  been  a  cor- 
respondent advancement.  The  discoveries  of  Newton  have  been 
followed  out  and  demonstrated  by  new  methods  and  analyses,  to  an 
extent,  which  would  surprise  that  great  philosopher  himself,  if  he 
were  now  living.  I  need  but  name  such  men  as  La  Grange  and 
La  Place.  By  means  of  observatories,  the  heavens  have  been, 
if  I  may  so  say,  circumnavigated,  and  every  irregularity  and  per- 
turbation of  the  motions  of  the  heavenly  bodies  ascertained  to 
depend  upon  the  same  eternal  law  of  gravitation,  and  to  result  in 
the  harmonious  balance  of  forces.  But  it  is  in  physical  science, 
and  especially  in  its  adaptation  to  the  arts  of  life,  that  the  present 
age  may  claim  precedence  of  all  others.     T  have  already  alluded 


It)  LITERARY    DISCOURSES. 

to  chemistry,  which  lias  enabled  us  to  fix  and  discharge  colors  with 
equal  certainty  ;  now  to  imitate  the  whiteness  of  the  driven  snow, 
and  now  the  loveliness  of  the  Tyrian  dyes.  But  who  can  meas- 
ure the  extent  of  the  changes  in  agriculture,  manufactures,  and 
commerce,  produced  by  the  steam-engine  of  Watt,  by  the  cotton- 
machinery  of  Arkwright,  by  the  power-looms  of  a  later  period,  by 
the  cotton-gin  of  Whitney,  and  though  last,  not  least,  by  the 
steam-boat  of  Fulton  ?  When  I  name  these,  I  select  but  a  few 
among  the  inventions  of  our  age,  in  which  nature  and  art  minister 
alternately  to  the  wants  and  the  triumphs  of  man. 

If  in  metaphysics  no  brilliant  discoveries  have  rewarded  the 
industry  of  its  votaries,  it  may  nevertheless  be  said,  that  the  laws 
of  the  mind  have  been  investigated  with  no  common  success. 
They  have  been  illustrated  by  a  fuller  display  of  the  doctrine  of 
association  of  Hartley,  by  the  common  sense  of  Reid,  by  the  acute 
discrimination  of  Brown,  and  by  the  incomparable  elegance  of 
Dugald  Stewart.  If,  indeed,  in  this  direction  any  new  discoveries 
are  to  be  expected,  it  appears  to  me,  with  great  deference,  that 
they  must  be  sought  through  more  exact  researches  into  that  branch 
of  physiology,  which  respects  the  structure  and  functions  of  those 
organs,  which  are  immediately  connected  with  the  operations  of 
the  mind. 

I  have  but  glanced  at  most  of  the  preceding  subjects,  many  of 
which  are  remote  from  the  studies,  which  have  engaged  my  life, 
and  to  all  of  which,  I  am  conscious,  that  I  am  unable  to  do  even 
moderate  justice. 

But  it  is  to  the  department  of  general  and  miscellaneous  litera- 
ture, and  above  all,  of  English  literature,  that  we  may  look  with 
pride  and  confidence.  Here  the  genius  of  the  age  has  displayed 
itself  in  innumerable  varieties  of  form  and  beauty,  from  the  humble 
page,  which  presumes  to  teach  the  infant  mind  the  first  lines  of 
thought,  to  the  lofty  works,  which  discourse  of  history,  and  philo- 
sophy, and  ethics,  and  government;  from  the  voyager,  who  collects 
his  budget  of  wonders  for  the  amusement  of  the  idle,  to  the  gallant 
adventurer  to  the  Pole,  and  the  scientific  traveller  on  the  Andes. 
Poetry,  too,  has  dealt  out  its  enchantments  with  profuse  liberality, 
now  startling  us  with  its  visionary  horrors  and  superhuman  pageants, 
now  scorching  us  with  its  I'k  ice  and  caustic  satire,  now  lapping  us 
in  Elysium  by  the  side  of  sunny  shores,  or  lovely  lakes,  or  haunted 
'jtoncSj  or  consecrated  ruins.  It  is,  indeed,  no  exaggeration  of  the 
truth  to  declare,  that  polite  literature,  from  the  light  essay  to  the 


PHI    BETA    KAPPA    DISCOURSE.  17 

most  profound  disquisition,  can  enumerate  more  excellent  works, 
as  the  production  of  the  last  fifty  years,  than  of  all  former  ages 
since  the  revival  of  letters. 

Periodica]  literature  has  elevated  itself  from  an  amusement  of 
cultivated  minds,  or  a  last  resort  of  impoverished  authors,  to  the 
first  rank  of  composition,  in  which  the  proudest  are  not  ashamed  to 
labor,  and  the  highest  may  gain  fame  and  consequence.  A  half 
century  ago,  a  single  magazine  and  a  single  review  almost  sufficed 
the  whole  reading  public  of  England  and  America.  At  present,  a 
host  crowd  round  us,  from  the  gossamery  repository,  which  adorns 
the  toilet,  to  the  grave  review,  which  discusses  the  fate  of  empires, 
arraigns  the  counsels  of  statesmen,  expounds  all  mysteries  in  policy 
and  science,  or,  stooping  from  such  pursuits,  condescends,  like  other 
absolute  powers,  sometimes  to  crush  an  author  to  death,  and  some- 
times to  elevate  him  to  a  height,  where  he  faints  from  the  mere 
sense  of  giddiness.  We  have  our  journals  of  science  and  journals 
of  arts  ;  the  New  Monthly,  with  the  refreshing  genius  of  Campbell, 
and  the  Old  Monthly,  with  the  companionable  qualities  of  a  familiar 
friend.  We  have  the  Quarterly  Reviewers,  the  loyal  defenders  of 
Church  and  State,  the  laudatores  temporis  acti,  the  champions,  ay, 
and  exemplars  too,  of  classical  learning,  the  admirers  of  ancient 
establishments  and  ancient  opinions.  We  have,  on  the  other  hand, 
the  Edinburgh,  the  bold  advocates  of  reform,  and  still  bolder  politi- 
cal economists,  hunting  out  public  abuses,  and  alarming  idle  gentle- 
men pensioners  with  tales  of  misapplied  charities  ;  now  deriding, 
with  bitter  taunts,  the  dull  but  busy  gleaners  in  literature  ;  now 
brightening  their  pages  with  the  sunshine  of  wit ;  and  now  paying 
homage  to  genius,  by  expounding  its  labors  in  language  of  transcen- 
dent felicity.  One  might  approach  nearer  home,  and,  if  it  were 
not  dangerous  to  rouse  the  attention  of  critics,  might  tell  of  a  certain 
North  American,  which  has  done  as  much  to  give  a  solid  cast  to 
our  literature,  and  a  national  feeling  to  our  authors,  as  any  single 
event  since  the  peace  of  1783. 

Another  interesting  accompaniment  of  the  literature  of  the  age, 
is  its  superior  moral  purity  over  former  productions.  The  obscene 
jests,  the  low  ribaldry,  and  the  coarse  allusions,  which  shed  a  disas- 
trous light  on  so  many  pages  of  misguided  genius  in  former  times, 
find  no  sympathy  in  ours.  He,  who  would  now  command  respect, 
must  write  with  pure  sentiments  and  elevated  feelings  ;  he,  who 
would  now  please,  must  be  chaste,  as  well  as  witty,  and  moral,  as 
well  as  brilliant.  Fiction  itself  is  restrained  to  the  decencies  of 
3 


18  LITERARY    DISCOURSES. 

life  ;  and  whether  in  the  drama,  or  the  novel,  or  the  song,  with  a 
few  melancholy  exceptions,  it  seeks  no  longer  to  kindle  fires,  which 
would  consume  the  youthful  enthusiast,  or  to  instil  precepts,  which 
would  blast  the  loveliness  of  the  innocent. 

But  let  it  not  be  imagined,  that,  in  the  present  state  of  things, 
there  is  nothing  for  regret,  and  nothing  for  admonition.  The  picture 
of  the  age,  when  truly  drawn,  is  not  wholly  composed  of  lights. 
There  are  shades,  which  disturb  the  beauty  of  the  coloring,  and 
points  of  reflection,  where  there  is  no  longer  harmony  in  the  pro- 
portions. 

The  unavoidable  tendency  of  free  speculation  is  to  lead  to  occa- 
sional extravagances.  When  once  the  reverence  for  authority  is 
shaken,  there  is  apt  to  grow  up  in  its  stead  a  cold  skepticism 
respecting  established  opinions.  Their  very  antiquity,  under  such 
circumstances,  betrays  us  into  suspicion  of  their  truth.  The  over- 
throw of  error  itself  urges  on  a  feverish  excitement  for  discussion, 
and  a  restless  desire  for  novelty,  which  blind,  if  they  do  not  con- 
found, the  judgment.  Thus,  the  human  mind  not  un  frequently 
passes  from  one  extreme  to  another  ;  from  one  of  implicit  faith,  to 
one  of  absolute  incredulity. 

There  is  not  a  remark  deducible  from  the  history  of  mankind 
more  important  than  that  advanced  by  Mr.  Burke,  that  "  to  innovate 
is  not  to  reform."  That  is,  if  I  may  venture  to  follow  out  the  sense 
of  this  great  man,  that  innovation  is  not  necessarily  improvement ; 
that  novelty  is  not  necessarily  excellence  ;  that  what  was  deemed 
wisdom  in  former  times,  is  not  necessarily  folly  in  ours  ;  that  the 
course  of  the  human  mind  has  not  been  to  present  a  multitude  of 
truths  in  one  great  step  of  its  glory,  but  to  gather  them  up  insensi- 
bly in  its  progress,  and  to  place  them  at  distances,  sometimes  at 
vast  distances,  as  guides  or  warnings  to  succeeding  ages.  If  Greece 
and  Rome  did  not  solve  all  the  problems  of  civil  government,  or 
enunciate  the  admirable  theorem  of  representative  legislation,  it 
should  never  be  forgotten,  that  from  them  we  have  learned  those 
principles  of  liberty,  which,  in  the  worst  of  limes,  have  consoled  the 
patriot  for  all  his  sufferings.  If  they  cannot  boast  of  the  various 
attainments  of  our  days,  they  may  point  out  to  us  the  lessons  of 
wisdom,  the  noble  discoveries,  and  the  imperishable  labors  of  their 
mighty  dead.  It  is  not  necessarily  error  to  follow  the  footsteps  of 
ancient  philosophy,  to  reverence  the  precepts  of  ancient  criticism, 
to  meditate  over  the  pages  of  ancient  exploits,  or  to  listen  to  the 
admonitions  of  ancient  oratory. 


PHI    BETA    KAPPA    DISCOURSE.  19 

We  may  even  gather  instruction  from  periods  of  another  sort,  in 
which  there  was  a  darkness,  which  might  be  felt,  as  well  as  seen. 
Where  is  to  be  found  a  nobler  institution  than  the  trial  by  jury, 
that  impregnable  bulwark  of  civil  liberty  ?  Yet  it  belongs  to  ages 
of  Gothic  darkness,  or  Saxon  barbarism.  Where  is  there  a  more 
enduring  monument  of  political  wisdom  than  the  separation  of  the 
judicial  from  the  legislative  power  ?  Yet  it  was  the  slow  production 
of  ages,  which  are  obscured  by  the  mists  of  time.  Where  shall 
we  point  out  an  invention,  whose  effects  have  been  more  wide,  or 
more  splendid,  than  those  of  the  mariner's  compass  ?  Yet  five 
centuries  have  rolled  over  the  grave  of  its  celebrated  discoverer. 
Where  shall  we  find  the  true  logic  of  physical  science  so  admirably 
stated,  as  in  the  Novum  Organum  of  him,  who,  more  than  two 
centuries  ago,  saw,  as  in  vision,  and  foretold,  as  in  prophecy,  the 
sublime  discoveries  of  these  latter  days  ? 

This  is  a  topic,  which  may  not  wholly  be  passed  over,  since  it 
presents  some  of  the  dangers,  to  which  we  are  exposed,  and  calls 
upon  us  to  watch  the  progress  of  opinion,  and  guard  against  the 
seductive  influence  of  novelties.  The  busy  character  of  the  age 
is  perpetually  pressing  forward  all  sorts  of  objections  to  established 
truths  in  politics,  and  morals,  and  literature.  In  order  to  escape 
from  the  imputation  of  triteness,  some  authors  tax  their  ingenuity 
to  surprise  us  with  bold  paradoxes,  or  run  down  with  wit  and  ridi- 
cule the  doctrines  of  common  sense,  appealing  sometimes  to  the 
ignorance,  and  sometimes  to  the  pride  of  their  readers.  Their 
object  is  not  so  much  to  produce  what  is  true,  as  what  is  striking  ; 
what  is  profound,  as  what  is  interesting  ;  what  will  endure  the  test 
of  future  criticism,  as  what  will  buoy  itself  up  on  the  current  of  a 
shallow  popularity.  In  the  rage  for  originality,  the  old  standards 
of  taste  are  deserted,  or  treated  with  cold  indifference  ;  and  thus, 
false  and  glittering  thoughts,  and  hurried  and  flippant  fantasies,  are 
substituted  for  exact  and  philosophical  reasoning. 

There  is,  too,  a  growing  propensity  to  disparage  the  importance 
of  classical  learning.  Many  causes,  especially  in  England  and 
America,  have  conduced  to  this  result.  The  signal  success,  which 
has  followed  the  enterprises  in  physical  science,  in  mechanics,  in 
chemistry,  in  civil  engineering,  and  the  ample  rewards  both  of  for- 
tune and  fame  attendant  upon  that  success,  have  had  a  very  power- 
ful influence  upon  the  best  talents  of  both  countries.  There  is, 
too,  in  the  public  mind  a  strong  disposition  to  turn  every  thing  to  a 
practical  account,  to  deal  less  with  learning,  and  more  with  experi- 


20  LITERARY    DISCOURSES. 

merit;  to  seek  the  solid  comforts  of  opulence,  rather  than  the  indul- 
gence of  mere  intellectual  luxury.  On  the  other  hand,  from  the 
increase  of  materials,  as  well  as  of  critical  skill,  high  scholarship  is 
a  prize  of  no  easy  attainment ;  and,  when  attained,  it  slowly  receives 
public  favor,  and  still  more  slowly  reaches  the  certainty  of  wealth. 
Indeed,  it  is  often  combined  with  a  contemplative  shyness,  and 
sense  of  personal  independence,  which  yield  little  to  policy,  and 
with  difficulty  brook  opposition.  The  honors  of  the  world  rarely 
cluster  round  it ;  and  it  cherishes  with  most  enthusiasm  those  feel- 
ings, which  the  active  pursuits  of  life  necessarily  impair,  if  they  do 
not  wholly  extinguish.  The  devotion  to  it,  therefore,  where  it 
exists,  often  becomes  an  exclusive  passion  ;  and  thus,  the  gratifica- 
tion of  it  becomes  the  end,  instead  of  the  means  of  life.  Instances 
of  extraordinary  success  by  mere  scholarship  are  more  rare  than  in 
other  professions.  It  is  not,  then,  to  be  wondered  at,  that  the  pru- 
dence of  some  minds,  and  the  ambition  of  others,  should  shrink 
from  labors,  which  demand  days  and  nights  of  study,  and  hold  out 
rewards,  which  are  distant,  or  pleasures,  which  are,  for  the  most 
part,  purely  intellectual. 

Causes  like  these,  in  an  age,  which  scrutinizes  and  questions  the 
pretensions  of  every  department  of  literature,  have  contributed  to 
bring  into  discussion  the  use  and  the  value  of  classical  learning.  I 
do  not  stand  up,  on  this  occasion,  to  vindicate  its  claims,  or  extol  its 
merits.  That  would  be  a  fit  theme  for  one  of  our  most  distin- 
guished scholars,  in  a  large  discourse.  But  I.  may  not  withhold  my 
willing  testimony  to  its  excellence,  nor  forget  the  fond  regret,  with 
which  I  left  its  enticing  studies  for  the  discipline  of  more  severe 
instructers. 

The  importance  of  classical  learning  to  professional  education  is 
so  obvious,  that  the  surprise  is,  that  it  could  ever  have  become 
matter  of  disputation.  I  speak  not  of  its  power  in  refining  the 
taste,  in  disciplining  the  judgment,  in  invigorating  the  understand- 
ing, or  in  warming  the  heart  with  elevated  sentiments  ;  but  of  its 
power  of  direct,  positive,  necessary  instruction.  Until  the  eigh- 
teenth century,  the  mass  of  science,  in  its  principal  branches,  was 
deposited  in  the  dead  languages,  and  much  of  it  still  reposes  there. 
To  be  ignorant  of  these  languages  is  to  shut  out  the  lights  of  former 
times,  or  to  examine  them  only  through  the  glimmerings  of  inade- 
quate translations.  What  should  we  say  of  the  jurist,  who  never 
aspired  to  learn  the  maxims  of  law  and  equity,  which  adorn  the 
Roman  codes  ?     What  of  the   physician,   who  could  deliberately 


PHI    BETA    KAPPA    DISCOURSE.  21 

surrender  all  the  knowledge  heaped  up  for  so  many  centuries  in 
the  Latinity  of  continental  Europe  ?  What  of  the  minister  of 
religion,  who  should  choose  not  to  study  the  Scriptures  in  the 
original  tongue,  and  should  be  content  to  trust  his  faith  and  his 
hopes,  for  time  and  for  eternity,  to  the  dimness  of  translations, 
which  may  reflect  the  literal  import,  but  rarely  can  reflect  with 
unbroken  force  the  beautiful  spirit  of  the  text  ?  Shall  he,  whose 
vocation  it  is  "  to  allure  to  brighter  worlds,  and  lead  the  way,"  be 
himself  the  blind  leader  of  the  blind  ?  Shall  he  follow  the  com- 
mentaries of  fallible  man,  instead  of  gathering  the  true  sense  from 
the  Gospels  themselves  ?  Shall  he  venture  upon  the  exposition  of 
divine  truths,  whose  studies  have  never  aimed  at  the  first  principles 
of  interpretation  ?  Shall  he  proclaim  the  doctrines  of  salvation, 
who  knows  not,  and  cares  not,  whether  he  preaches  an  idle  gloss, 
or  the  genuine  text  of  revelation  ?  If  a  theologian  may  not  pass 
his  life  in  collating  the  various  readings,  he  may,  and  ought  to 
aspire  to  that  criticism,  which  illustrates  religion  by  all  the  re- 
sources of  human  learning ;  which  studies  the  manners  and  institu- 
tions of  the  age  and  country,  in  which  Christianity  was  first 
promulgated ;  which  kindles  an  enthusiasm  for  its  precepts  by 
familiarity  with  the  persuasive  language  of  Him,  who  poured  out 
his  blessings  on  the  Mount,  and  of  him,  at  whose  impressive  appeal 
Felix  trembled. 

I  pass  over  all  consideration  of  the  written  treasures  of  antiquity, 
which  have  survived  the  wreck  of  empires  and  dynasties,  of  monu- 
mental trophies  and  triumphal  arches,  of  palaces  of  princes  and 
temples  of  the  Gods.  I  pass  over  all  consideration  of  those  ad- 
mired compositions,  in  which  wisdom  speaks,  as  with  a  voice  from 
heaven  ;  of  those  sublime  efforts  of  poetical  genius,  which  still 
freshen,  as  they  pass  from  age  to  age,  in  undying  vigor ;  of  those 
finished  histories,  which  still  enlighten  and  instruct  governments  in 
their  duty  and  their  destiny ;  of  those  matchless  orations,  which 
roused  nation?  to  arms,  and  chained  senates  to  the  chariot  wheels 
of  all-conquering  eloquence.  These  all  may  now  be  read  in  our 
vernacular  tongue.  Ay,  as  one  remembers  the  face  of  a  dead 
friend  by  gathering  up  the  broken  fragments  of  his  image  —  as  one 
listens  to  the  tale  of  a  dream  twice  told  —  as  one  catches  the  roar 
of  the  ocean  in  the  ripple  of  a  rivulet  —  as  one  sees  the  blaze  of 
noon  in  the  first  glimmer  of  twilight. 

There  is  one  objection,  however,  on  which  I  would  for  a  moment 
dwell,  because  it  has  a  commanding  influence  over  many  minds, 


22  LITERARY    DISCOURSES. 

and  is  clothed  with  a  specious  importance.  It  is  often  said,  that 
there  have  been  eminent  men  and  eminent  writers,  to  whom  the 
ancient  languages  were  unknown  ;  men,  who  have  risen  by  the 
force  of  their  talents,  and  writers,  who  have  written  with  a  purity 
and  ease,  which  hold  them  up  as  models  for  imitation.  On  the 
other  hand,  it  is  as  often  said,  that  scholars  do  not  always  compose 
either  with  elegance  or  chasleness ;  that  their  diction  is  sometimes 
loose  and  harsh,  and  sometimes  ponderous  and  affected.  Be  it 
so.  I  am  not  disposed  to  call  in  question  the  accuracy  of  either 
statement.  But  I  would  nevertheless  say,  that  the  presence  of 
classical  learning  was  not  the  cause  of  the  faults  of  the  one  class, 
nor  the  absence  of  it  the  cause  of  the  excellence  of  the  other. 
And  I  would  put  this  fact,  as  an  answer  to  all  such  reasonings,  that 
there  is  not  a  single  language  of  modern  Europe,  in  which  litera- 
ture has  made  any  considerable  advances,  which  is  not  directly  of 
Roman  origin,  or  has  not  incorporated  into  its  very  structure  many, 
very  many,  of  the  idioms  and  peculiarities  of  the  ancient  tongues. 
The  English  language  affords  a  strong  illustration  of  the  truth  of 
this  remark.  It  abounds  with  words  and  meanings  drawn  from 
classical  sources.  Innumerable  phrases  retain  the  symmetry  of 
their  ancient  dress.  Innumerable  expressions  have  received  their 
vivid  tints  from  the  beautiful  dyes  of  Roman  and  Grecian  roots. 
If  scholars,  therefore,  do  not  write  our  language  with  ease,  or 
purity,  or  elegance,  the  cause  must  lie  somewhat  deeper  than  a 
conjectural  ignorance  of  its  true  diction. 

But  I  am  prepared  to  yield  still  more  to  the  force  of  the  objec- 
tion. I  do  not  deny,  that  a  language  may  be  built  up  without  the 
aid  of  any  foreign  materials,  and  be  at  once  flexible  for  speech  and 
graceful  for  composition  ;  that  the  literature  of  a  nation  may  be 
splendid  and  instructive,  full  of  interest  and  beauty  in  thought  and 
in  diction,  which  has  no  kindred  with  classical  learning ;  that  in  the 
vast  stream  of  time  it  may  run  its  own  current  unstained  by  the 
admixture  of  surrounding  languages;  that  it  may  realize  the  ancient 
fable,  "  Doris  amara  suam  non  intermisceat  undam  ;  "  that  it  may 
retain  its  own  flavor,  and  its  own  bitter  saltness  too.  But  I  do 
deny,  that  such  a  national  literature  does  in  fact  exist  in  modern 
Europe,  in  that  community  of  nations  of  which  we  form  a  part, 
and  to  whose  fortunes  and  pursuits  in  literature  and  arts  we  are 
bound  by  all  our  habits,  and  feelings,  and  interests.  There  is  not 
a  single  nation,  from  the  North  to  the  South  of  Europe,  from  the 
bleak  shores  of  the  Baltic  to  the  bright  plains  of  immortal  Italy, 


PHI    BETA    KAPPA    DISCOURSE.  23 

whose  literature  is  not  embedded  in  the  very  elements  of  classical 
learning.  The  literature  of  England  is,  in  an  emphatic  sense,  the 
production  of  her  scholars;  of  men,  who  have  cultivated  letters  in 
her  universities,  and  colleges,  and  grammar  schools  ;  of  men,  who 
thought  any  life  too  short,  chiefly,  because  it  left  some  relic  of 
antiquity  unmastered,  and  any  other  fame  humble,  because  it  faded 
in  the  presence  of  Roman  and  Grecian  genius.  He,  who  studies 
English  literature  without  the  lights  of  classical  learning,  loses  half 
the  charms  of  its  sentiments  and  style,  of  its  force  and  feelings,  of 
its  delicate  touches,  of  its  delightful  allusions,  of  its  illustrative 
associations.  Who,  that  reads  the  poetry  of  Gray,  does  not  feel, 
that  it  is  the  refinement  of  classical  taste,  which  gives  such  inex- 
pressible vividness  and  transparency  to  his  diction  ?  Who,  that 
reads  the  concentrated  sense  and  melodious  versification  of  Dryden 
and  Pope,  does  not  perceive  in  them  the  disciples  of  the  old  school, 
whose  genius  was  inflamed  by  the  heroic  verse,  the  terse  satire,  and 
the  playful  wit  of  antiquity  ?  Who,  that  meditates  over  the  strains 
of  Milton,  does  not  feel,  that  he  drank  deep  at 

"  Siloa's  brook,  that  flowed 
Fast  by  the  oracle  of  God  "  — 

that  the  fires  of  his  magnificent  mind  were  lighted  by  coals  from 
ancient  altars  ? 

It  is  no  exaggeration  to  declare,  that  he,  who  proposes  to  abolish 
classical  studies,  proposes  to  render,  in  a  great  measure,  inert  and 
unedifying  the  mass  of  English  literature  for  three  centuries ;  to 
rob  us  of  much  of  the  glory  of  the  past,  and  much  of  the  instruc- 
tion of  future  ages  ;  to  blind  us  to  excellences,  which  few  may  hope 
to  equal,  and  none  to  surpass  ;  to  annihilate  associations,  which  are 
interwoven  with  our  best  sentiments,  and  give  to  distant  times  and 
countries  a  presence  and  reality,  as  if  they  were  in  fact  our  own. 

There  are  dangers  of  another  sort,  which  beset  the  literature  of 
the  age.  The  constant  demand  for  new  works,  and  the  impatience 
for  fame,  not  only  stimulate  authors  to  an  undue  eagerness  for 
strange  incidents,  singular  opinions,  and  vain  sentimentalities,  but 
their  style  and  diction  are  infected  with  the  faults  of  extravagance 
and  affectation.  The  old  models  of  fine  writing  and  good  taste  are 
departed  from,  not  because  they  can  be  excelled,  but  because  they 
are  known,  and  want  freshness  ;  because,  if  they  have  a  finished 
coloring,  they  have  no  strong  contrasts  to  produce  effect.  The 
consequence  is,  that  opposite  extremes  in  the  manner  of  composi- 
tion prevail  at  the  same  moment,  or  succeed  each  other  with  a 


24  LITERARY    DISCOURSES. 

fearful  rapidity.  On  one  side  are  to  be  found  authors,  who  profess 
to  admire  the  easy  flow  and  simplicity  of  the  old  style,  the  natural- 
ness of  familiar  prose,  and  the  tranquil  dignity  of  higher  composi- 
tions. But  in  their  desire  to  be  simple,  they  become  extravagantly 
loose  and  inartificial ;  in  their  familiarity,  feeble  and  drivelling ;  and 
in  their  more  aspiring  efforts,  cold,  abstract,  and  harsh.  On  the 
other  side,  there  are  those,  who  have  no  love  for  polished  per- 
fection of  style,  for  sustained  and  unimpassioned  accuracy,  for 
persuasive,  but  equable  diction.  They  require  more  hurried  tones, 
more  stirring  spirit,  more  glowing  and  irregular  sentences.  There 
must  be  intensity  of  thought  and  intensity  of  phrase  at  every  turn. 
There  must  be  bold  and  abrupt  transitions,  strong  relief,  vivid 
coloring,  forcible  expression.  If  these  are  present,  all  other  faults 
are  forgiven,  or  forgotten.  Excitement  is  produced,  and  taste 
may  slumber. 

Examples  of  each  sort  may  be  easily  found  in  our  miscellaneous 
literature  among  minds  of  no  ordinary  cast.  Our  poetry  deals  less 
than  formerly  with  the  sentiments  and  feelings  belonging  to  ordinary 
life.  It  has  almost  ceased  to  be  didactic  ;  and  in  its  scenery  and 
descriptions  reflects  too  much  the  peculiarities  and  morbid  visions 
of  eccentric  minds.  How  little  do  we  see  of  the  simple  beauty, 
the  chaste  painting,  the  unconscious  moral  grandeur  of  Crabbe  and 
Cowper?  We  have,  indeed,  successfully  dethroned  the  heathen 
deities.  The  Muses  are  no  longer  invoked  by  every  unhappy 
inditer  of  verse.  The  Naiads  no  longer  inhabit  our  fountains,  nor 
the  Dryads  our  woods.  The  River  Gods  no  longer  rise,  like  old 
father  Thames, 

"  And  the  hushed  waves  glide  softly  to  the  shore." 
In  these  respects  our  poetry  is  more  true  to  nature,  and  more 
conformable  to  just  taste.  But  it  still  insists  too  much  on  extrava- 
gant events,  characters,  and  passions,  far  removed  from  common 
life,  and  farther  removed  from  general  sympathy.  It  seeks  to  be 
wild,  and  fiery,  and  startling;  and  sometimes,  in  its  caprices,  low 
and  childish.  It  portrays  natural  scenery,  as  if  it  were  always  in 
violent  commotion.  It  describes  human  emotions,  as  if  man  were 
always  in  ecstasies  or  horrors.  Whoever  writes  for  future  ages, 
must  found  himself  upon  feelings  and  sentiments  belonging  to  the 
mass  of  mankind.  Whoever  paints  from  nature,  will  rarely  depart 
from  the  general  character  of  repose  impressed  upon  her  scenery, 
and  will  prefer  truth  to  the  ideal  sketches  of  the  imagination. 


PHI    BETA    KAPPA    DISCOURSE.  25 

Our  prose,  too,  has  a  tendency  to  become  somewhat  too  ambitious 
and  intense.  Even  in  newspaper  discussions  of  the  merits  or  mis- 
deeds of  rulers,  there  is  a  secret  dread  of  neglect,  unless  the  page 
gives  out  the  sententious  pungency  or  sarcastic  scorn  of  Junius. 
Familiar,  idiomatic  prose  seems  less  attractive  than  in  former  times. 
Yet  one  would  suppose,  that  we  might  follow  with  safety  the  un- 
affected purity  of  Addison  in  criticism,  and  the  graceful  ease  of 
Goldsmith  in  narrative.  The  neat  and  lively  style  of  Swift  loses 
nothing  of  its  force  by  the  simplicity  with  which  it  aims  to  put 
"  proper  words  in  proper  places."  The  correspondence  of  Cowper 
is  not  less  engaging,  because  it  utters  no  cant  phrases,  no  sparkling 
conceits,  and  no  pointed  repartees. 

But  these  faults  may  be  considered  as  temporary,  and  are  far 
from  universal.  There  is  another,  however,  which  is  more  serious 
and  important  in  its  character,  and  is  the  common  accompaniment 
of  success.  It  is  the  strong  temptation  of  distinguished  authors  to 
premature  publication  of  their  labors,  to  hasty  and  unfinished 
sketches,  to  fervid,  but  unequal  efforts.  He,  who  writes  for  immor- 
tality, must  write  slowly,  and  correct  freely.  It  is  not  the  applause 
of  the  present  day,  or  the  deep  interest  of  a  temporary  topic,  or 
the  consciousness  of  great  powers,  or  the  striking-off  of  a  vigorous 
discourse,  which  will  ensure  a  favorable  verdict  from  posterity.  It 
was  a  beautiful  remark  of  Sir  Joshua  Reynolds,  that  "  Great  works, 
which  are  to  live,  and  stand  the  criticism  of  posterity,  are  not  per- 
formed at  a  heat."  "  I  remember,"  said  he,  "  when  I  was  at 
Rome,  looking  at  the  fighting  gladiator,  in  company  with  an  emi- 
nent sculptor,  and  I  expressed  my  admiration  of  the  skill  with 
which  the  whole  is  composed,  and  the  minute  attention  ol  the 
artist  to  the  change  of  every  muscle  in  that  momentary  exertion  of 
strength.  He  was  of  opinion,  that  a  work  so  perfect  required 
nearly  the  whole  life  of  man  to  perform."  What  an  admonition  ! 
What  a  melancholy  reflection  to  those,  who  deem  the  literary  fame 
of  the  present  age  the  best  gift  to  posterity  !  How  many  of  our 
proudest  geniuses  have  written,  and  continue  to  write,  with  a  swift- 
ness, which  almost  rivals  the  operations  of  the  press !  How  many 
are  urged  on  to  the  ruin  of  their  immortal  hopes  by  that  public 
favor,  which  receives  with  acclamations  every  new  offspring  of 
their  pen  !  If  Milton  bad  written  thus,  we  should  have  found  no 
scholar  of  our  day,  no  "  Christian  Examiner,"  portraying  the  glory 
of  his  character  with  the  enthusiasm  of  a  kindred  spirit.  If  Pope 
had  written  thus,  we  should  have  bad  no  fierce  contests  respecting 
4 


26  LITERARY    DISCOURSES. 

his  genius  and  poetical  attainments,  by  our  Byrons,  and  Bowleses, 
and  Roscoes.  If  Virgil  had  written  thus,  he  might  have  chanted 
his  verses  to  the  courtly  Augustus ;  but  Marcellus  and  his  story 
would  have  perished.  If  Horace  had  written  thus,  he  might  have 
enchanted  gay  friends  and  social  parties  ;  but  it  would  never  have 
been  said  of  his  composition,  Dccies  repctita  placebit. 

Such  are  some  of  the  considerations,  which  have  appeared  to  me 
fit  to  be  addressed  to  you  on  the  present  occasion.  It  may  be, 
that  I  have  overrated  their  importance,  and  I  am  not  unconscious 
of  the  imperfections  of  my  own  execution  of  the  task. 

To  us,  Americans,  nothing,  indeed,  can,  or  ought  to  be  indif- 
ferent, that  respects  the  cause  of  science  and  literature.  We  have 
taken  a  stand  among  the  nations  of  the  earth,  and  have  success- 
fully asserted  our  claim  to  political  equality.  We  possess  an 
enviable  elevation,  so  far  as  concerns  the  structure  of  our  govern- 
ment, our  political  policy,  and  the  moral  energy  of  our  institutions. 
If  we  are  not  without  rivals  in  these  respects,  we  are  scarcely 
behind  any,  even  in  the  general  estimate  of  foreign  nations  them- 
selves. But  our  claims  are  far  more  extensive.  We  assert  an 
equality  of  voice  and  vote  in  the  republic  of  letters,  and  assume 
for  ourselves  the  right  to  decide  on  the  merits  of  others,  as  well  as 
to  vindicate  our  own.  These  are  lofty  pretensions,  which  are 
never  conceded  without  proofs,  and  are  severely  scrutinized,  and 
slowly  admitted  by  the  grave  judges  in  the  tribunal  of  letters.  We 
have  not  placed  ourselves  as  humble  aspirants,  seeking  our  wray  to 
higher  rewards  under  the  guardianship  of  experienced  guides.  We 
ask  admission  into  the  temple  of  fame,  as  joint  heirs  of  the  inheri- 
tance, capable,  in  the  manhood  of  our  strength,  of  maintaining  our 
title.  We  contend  for  prizes  with  nations,  whose  intellectual  glory 
has  received  the  homage  of  centuries.  France,  Italy,  Germany, 
England,  can  point  to  the  past  for  monuments  of  their  genius  and 
skill,  and  to  the  present,  with  the  undismayed  confidence  of  vete- 
rans. It  is  not  for  us  to  retire  from  the  ground,  which  we  have 
chosen  to  occupy,  nor  to  shut  our  eyes  against  the  difficulties  of 
maintaining  it.  It  is  not  by  a  few  vain  boasts,  or  vainer  self- 
complacency,  or  rash  daring,  that  we  are  to  win  our  way  to  the 
first  literary  distinction.  We  must  do  as  others  have  done  before 
us.  We  must  serve  in  the  hard  school  of  discipline  ;  we  must  in- 
vigorate our  powers  by  the  studies  of  other  times.  We  must  guide 
our  footsteps  by  those  stars,  which  have  shone,  and  still  continue 
to  shine,  with  inextinguishable  light  in  the  firmament  of  learning. 


PHI    BETA    KAPPA    DISCOURSE.  27 

Nor  have  we  any  reason  for  despondency.  There  is  that  in 
American  character,  which  has  never  yet  been  found  unequal  to  its 
purpose.  There  is  that  in  American  enterprise,  which  shrinks  not, 
and  faints  not,  and  fails  not  in  its  labors.  We  may  say,  with  honest 
pride, 

"  Man  is  the  nobler  growth  our  realms  supply, 
And  souls  .ire  ripened  in  our  Northern  sky." 

We  may  not,  then,  shrink  from  a  rigorous  examination  of  our  own 
deficiencies  in  science  and  literature.  If  we  have  but  a  just  sense 
of  our  wants,  we  have  gained  half  the  victory.  If  we  but  face 
our  difficulties,  they  will  fly  before  us.  Let  us  not  discredit  our 
just  honors  by  exaggerating  little  attainments.  There  are  those  in 
other  countries,  who  can  keenly  search  out,  and  boldly  expose 
every  false  pretension.  There  are  those  in  our  own  country,  who 
would  scorn  a  reputation  ill  founded  in  fact,  and  ill  sustained  by 
examples.  We  have  solid  claims  upon  the  affection  and  respect 
of  mankind.  Let  us  not  jeopard  them  by  a  false  shame,  or  an  os- 
tentatious pride.  The  growth  of  two  hundred  years  is  healthy, 
lofty,  expansive.  The  roots  have  shot  deep  and  far;  the  branches 
are  strong  and  broad.  I  trust  that  many,  many  centuries  to  come, 
will  witness  the  increase  and  vigor  of  the  stock.  Never,  never, 
may  any  of  our  posterity  have  just  occasion  to  speak  of  our  coun- 
try in  the  expressiveness  of  Indian  rhetoric,  "  It  is  an  aged  hem- 
lock ;  it  is  dead  at  the  top." 

I  repeat  it,  we  have  no  reason  to  blush  for  what  we  have  been, 
or  what  we  are.  But  we  shall  have  much  to  blush  for,  if,  when 
the  highest  attainments  of  the  human  intellect  are  within  our  reach, 
we  surrender  ourselves  to  an  obstinate  indifference,  or  shallow  me- 
diocrity ;  if,  in  our  literary  career,  we  are  content  to  rank  behind 
the  meanest  principality  of  Europe.  Let  us  not  waste  our  time  in 
seeking  for  apologies  for  our  ignorance,  where  it  exists,  or  in 
framing  excuses  to  conceal  it.  Let  our  short  reply  to  all  such  sug- 
gestions be,  like  the  answer  of  a  noble  youth  on  another  occasion, 
that  we  know  the  fact,  and  are  every  day  getting  the  better  of  it. 

What,  then,  may  I  be  permitted  to  ask,  are  our  attainments  in 
science  and  literature,  in  comparison  with  those  of  other  nations  in 
our  age  ?  I  do  not  ask,  if  we  have  fine  scholars,  accomplished 
divines,  and  skilful  physicians.  I  do  not  ask,  if  we  have  lawyers, 
who  might  excite  a  generous  rivalry  in  Westminster  Hall.  I  do 
not  ask,  if  we  have  statesmen,  who  would  stand  side  by  side  with 
those  of  the  old  world,  in  foresight,  in  political  wisdom,  in  effective 


28  LITERARY    DISCOURSES. 

debate.  I  do  not  ask,  if  we  have  mathematicians,  who  may  claim 
kindred  with  the  distinguished  of  Europe.  I  do  not  ask,  if  we 
have  historians,  who  have  told,  with  fidelity  and  force,  the  story  of 
our  deeds  and  our  sufferings.  I  do  not  ask,  if  we  have  critics, 
and  poets,  and  philologists,  whose  compositions  add  lustre  to  the 
aoe.  I  know  full  well,  that  there  are  such.  But  they  stand,  as 
light-houses  on  the  coasts  of  our  literature,  shining  with  a  cheering 
brightness,  it  is  true,  but  too  often  at  distressing  distances. 

In  almost  every  department  of  knowledge,  the  land  of  our  an- 
cestors annually  pours  forth  from  its  press  many  volumes,  the 
results  of  deep  research,  of  refined  taste,  and  of  rich  and  various 
learning.  The  continent  of  Europe,  too,  burns  with  a  generous 
zeal  for  science,  even  in  countries,  where  the  free  exercise  of 
thought  is  prohibited,  and  a  stinted  poverty  presses  heavily  on  the 
soul  of  enterprise.  Our  own  contributions  to  literature  are  useful 
and  creditable ;  but  it  can  rarely  be  said,  that  they  belong  to  the 
highest  class  of  intellectual  effort.  We  have  but  recently  entered 
upon  classical  learning,  for  the  purpose  of  cultivating  its  most  pro- 
found studies,  while  Europe  may  boast  of  thousands  of  scholars 
engaged  in  this  pursuit.  The  universities  of  Cambridge  and 
Oxford  count  more  than  eight  thousand  students,  trimming  their 
classical  lamps,  while  we  have  not  a  single  university,  whose  studies 
profess  to  be  extensive  enough  to  educate  a  Heyne,  a  Bentley,  a 
Porson,  or  a  Parr.  There  is  not,  perhaps,  a  single  library  in 
America,  sufficiently  copious  to  have  enabled  Gibbon  to  verify  the 
authorities  for  his  immortal  History  of  the  Decline  and  Fall  of  the 
Roman  Empire.  Our  advances  in  divinity  and  law  are  probably 
as  great  as  in  any  branch  of  knowledge.  Yet,  until  a  late  period, 
we  never  aspired  to  a  deep  and  critical  exposition  of  the  Scrip- 
tures. We  borrowed  from  Germany  and  England  nearly  all  our 
materials,  and  are  just  struggling  for  the  higher  rewards  of  biblical 
learning.  And  in  law,  where  our  eminence  is  least  of  all  ques- 
tionable, there  are  those  among  us,  who  feel,  that  sufficient  of  its 
learning,  and  argument,  and  philosophy,  remains  unmastcred,  to 
excite  the  ambition  of  the  foremost  advocates. 

Let  me  not  be  misunderstood.  I  advert  to  these  considerations, 
not  to  disparage  our  country,  or  its  institutions,  or  its  means  of  ex- 
tensive, I  had  almost  said,  of  universal  education.  But  we  should 
not  deceive  ourselves  with  the  notion,  that,  because  education  is 
liberally  provided  for,  the  highest  learning  is  within  the  scope  of 
that  education.     Our  schools  neither  aim  at,  nor  accomplish  such 


PHI    BETA    KAPPA    DISCOURSE.  29 

objects.  There  is  not  a  more  dangerous  error  than  that,  which 
would  soothe  us  into  indolence,  by  encouraging  the  belief,  that  our 
literature  is  all  it  can,  or  ought  to  be  ;  that  all  beyond,  is  shadowy 
and  unsubstantial,  the  vain  theories  of  the  scientific,  or  the  reveries 
of  mere  scholars.  The  admonition,  which  addresses  itself  to  my 
countrymen  respecting  their  deficiencies,  ought  to  awaken  new 
energy  to  overcome  them.  They  are  accustomed  to  grapple  with 
difficulties.  They  should  hold  nothing,  which  human  genius  or 
human  enterprise  has  yet  attained,  as  beyond  their  reach.  The 
motto  on  their  literary  banner  should  be,  Nee  timeo,  nee  spcrno. 
I  have  no  fears  for  the  future.  It  may  not  be  our  lot  to  see  our 
celebrity  in  letters  rival  that  of  our  public  polity  and  free  institu- 
tions. But  the  time  cannot  be  far  distant.  It  is  scarcely  prophecy 
to  declare,  that  our  children  must  and  will  enjoy  it.  They  will 
see,  not  merely  the  breathing  marble  and  the  speaking  picture 
among  their  arts,  but  science  and  learning  every  where  paying  a 
voluntary  homage  to  American  genius. 

There  is,  indeed,  enough  in  our  past  history  to  flatter  our  pride 
and  encourage  our  exertions.  We  are  of  the  lineage  of  the  Sax- 
ons, the  countrymen  of  Bacon,  Locke,  and  Newton,  as  well  as  of 
Washington,  Franklin,  and  Fulton.  We  have  read  the  history  of 
our  forefathers.  They  were  men  full  of  piety,  and  zeal,  and  an 
unconquerable  love  of  liberty.  They  also  loved  human  learning, 
and  deemed  it  second  only  to  divine.  Here,  on  this  very  spot,  in 
the  bosom  of  the  wilderness,  within  ten  short  years  after  their  vol- 
untary exile,  in  the  midst  of  cares,  and  privations,  and  sufferings, 
they  found  time  to  rear  a  little  school,  and  dedicate  it  to  God  and 
the  church.  It  has  grown ;  it  has  flourished  ;  it  is  the  venerable 
University,  to  whose  walls  her  grateful  children  annually  come,  with 
more  than  filial  affection.  The  sons  of  such  ancestors  can  never 
dishonor  their  memories ;  the  pupils  of  such  schools  can  never  be 
indifferent  to  the  cause  of  letters. 

There  is  yet  more  in  our  present  circumstances,  to  inspire  us 
with  a  wholesome  consciousness  of  our  powers  and  our  destiny. 
We  have  just  passed  the  jubilee  of  our  Independence,  and  wit- 
nessed the  prayers  and  gratitude  of  millions,  ascending  to  heaven, 
for  our  public  and  private  blessings.  That  independence  v/as  the 
achievement,  not  of  faction  and  ignorance,  but  of  hearts  as  pure, 
and  minds  as  enlightened,  and  judgments  as  sound,  as  ever  graced 
the  annals  of  mankind.  Among  the  leaders,  were  statesmen  and 
scholars,  as  well  as  heroes  and  patriots.     We  have  followed  many 


30  LITERARY    DISCOURSES. 

of  them  to  the  tomb,  blest  with  the  honors  of  their  country.  We 
have  been  privileged  yet  more  ;  we  have  lived  to  witness  an  almost 
miraculous  event  in  the  departure  of  two  great  authors  of  our  inde- 
pendence on  that  memorable  and  blessed  day  of  jubilee. 

I  may  not,  in  this  place,  presume  to  pronounce  the  funeral  pane- 
gyric of  these  extraordinary  men.  It  has  been  already  done  by 
some  of  the  master  spirits  of  our  country,  by  men  worthy  of  the 
task,  worthy  as  Pericles  to  pronounce  the  honors  of  the  Athenian 
dead.  It  was  the  beautiful  saying  of  the  Grecian  Orator,  that 
"  This  whole  earth  is  the  sepulchre  of  illustrious  men.  Nor  is  it 
the  inscriptions  on  the  columns  in  their  native  soil  alone,  that  show 
their  merit ;  but  the  memorial  of  them,  better  than  all  inscriptions, 
in  every  foreign  nation,  reposited  more  durably  in  universal  remem- 
brance than  on  their  own  tomb." 

Such  is  the  lot  of  Adams  and  Jefferson.  They  have  lived,  not 
for  themselves,  but  for  their  country  ;  not  for  their  country  alone, 
but  for  the  world.  They  belong  to  history,  as  furnishing  some  of 
the  best  examples  of  disinterested  and  successful  patriotism.  They 
belong  to  posterity,  as  the  instructers  of  all  future  ages  in  the  prin- 
ciples of  rational  liberty  and  the  rights  of  the  people.  They  belong 
to  us  of  the  present  age,  by  their  glory,  by  their  virtues,  and  by  their 
achievements.  These  are  memorials,  which  can  never  perish.  They 
will  brighten  with  the  lapse  of  time,  and,  as  they  loom  on  the  ocean 
of  eternity,  will  seem  present  to  the  most  distant  generations  of  men. 
That  voice  of  more  than  Roman  eloquence,  which  urged  and  sus- 
tained the  Declaration  of  Independence,  that  voice,  whose  first  and 
whose  last  accents  were  for  his  country,  is  indeed  mute.  It  will 
never  again  rise  in  defence  of  the  weak  against  popular  excitement, 
and  vindicate  the  majesty  of  law  and  justice.  It  will  never  again 
awaken  a  nation  to  arms  to  assert  its  liberties.  It  will  never  again 
instruct  the  public  councils  by  its  wisdom.  It  will  never  again  utter 
its  almost  oracular  thoughts  in  philosophical  retirement.  It  will  never 
again  pour  out  its  strains  of  parental  affection,  and,  in  the  domestic 
circle,  give  new  force  and  fervor  to  the  consolations  of  religion. 
The  hand,  too,  which  inscribed  the  Declaration  of  Independence 
is  indeed  laid  low.  The  weary  head  reposes  on  its  mother  earth. 
The  mountain  winds  sweep  by  the  narrow  tomb,  and  all  around  has 
the  loneliness  of  desolation.  The  stranger  guest  may  no  longer 
visit  that  hospitable  home,  and  find  him  there,  whose  classical  taste 
and  various  conversation  lent  a  charm  to  every  leisure  hour ;  whose 
bland  manners  and  social   simplicity  made   every   welcome  doubly 


PHI    BETA    KAPPA    DISCOURSE.  31 

dear ;  whose  expansive  mind  commanded  the  range  of  almost  every 
art  and  science  ;  whose  political  sagacity,  like  that  of  his  illustrious 
coadjutor,  read  the  fate  and  interests  of  nations,  as  with  a  second 
sight,  and  scented  the  first  breath  of  tyranny  in  the  passing  gale  ; 
whose  love  of  liberty,  like  his,  was  inflexible,  universal,  supreme  ; 
whose  devotion  to  their  common  country,  like  his,  never  faltered  in 
the  worst,  and  never  wearied  in  the  best  of  times  ;  whose  public 
services  ended  but  with  life,  carrying  the  long  line  of  their  illumina- 
tion over  sixty  years  ;  whose  last  thoughts  exhibited  the  rulino- 
passion  of  his  heart,  enthusiasm  in  the  cause  of  education  ;  whose 
last  breathing  committed  his  soul  to  God,  and  his  offspring  to  his 
country. 

Yes,  Adams  and  Jefferson  are  gone  from  us  for  ever  —  gone,  as 
a  sunbeam  to  revisit  its  native  skies  —  gone,  as  this  mortal  to  put 
on  immortality.  Of  them,  of  each  of  them,  every  American  may 
exclaim, 

"  Ne'er  to  the  chambers,  where  the  mighty  rest, 
Since  their  foundation,  came  a  nobler  guest ; 
Nor  e'er  was  to  the  bowers  of  bliss  conveyed 
A  fairer  spirit,  or  more  welcome  shade." 

We  may  not  mourn  over  the  departure  of  such  men.  We 
should  rather  hail  it  as  a  kind  dispensation  of  Providence,  to  affect 
our  hearts  with  new  and  livelier  gratitude.  They  were  not  cut  off 
in  the  blossom  of  their  days,  while  yet  the  vigor  of  manhood  flushed 
their  cheeks,  and  the  harvest  of  glory  was  ungathered.  They  fell 
not,  as  martyrs  fall,  seeing  only  in  dim  perspective  the  salvation  of 
their  country.  They  lived  to  enjoy  the  blessings,  earned  by  their 
labors,  and  to  realize  all,  which  their  fondest  hopes  had  desired. 
The  infirmities  of  life  stole  slowly  and  silently  upon  them,  leaving 
still  behind  a  cheerful  serenity  of  mind.  In  peace,  in  the  bosom 
of  domestic  affection,  in  the  hallowed  reverence  of  their  country- 
men, in  the  full  possession  of  their  faculties,  they  wore  out  the 
last  remains  of  life,  without  a  fear  to  cloud,  with  scarcely  a  sorrow 
to  disturb  its  close.  The  joyful  day  of  our  jubilee  came  over 
them  with  its  refreshing  influence.  To  them,  indeed,  it  was  "  a 
great  and  good  day."  The  morning  sun  shone  with  softened  lustre 
on  their  closing  eyes.  Its  evening  beams  played  lightly  on  their 
brows,  calm  in  all  the  dignity  of  death.  Their  spirits  escaped 
from  these  frail  tenements  without  a  struggle  or  a  groan.  Their 
death  was  gentle  as  an  infant's  sleep.  It  was  a  long,  lingering 
twilight,  melting  into  the  softest  shade. 


32  LITERARY    DISCOURSES. 

Fortunate  men,  so  to  have  lived,  and  so  to  have  died  !  Fortu- 
nate, to  have  gone  hand  in  hand  in  the  deeds  of  the  revolution  I 
Fortunate,  in  the  generous  rivalry  of  middle  life  !  Fortunate,  in 
deserving  and  receiving  the  highest  honors  of  their  country  !  For- 
tunate, in  old  age  to  have  rekindled  their  ancient  friendship  with  a 
holier  flame  !  Fortunate,  to  have  passed  through  the  dark  valley 
of  the  shadow  of  death  together !  Fortunate,  to  be  indissolubly 
united  in  the  memory  and  affections  of  their  countrymen  !  Fortu- 
nate, above  all,  in  an  immortality  of  virtuous  fame,  on  which  history 
may,  with  severe  simplicity,  write  the  dying  encomium  of  Pericles, 
"  No  citizen,  through  their  means,  ever  put  on  mourning  "  ! 

I  may  not  dwell  on  this  theme.  It  has  come  over  my  thoughts, 
and  I  could  not  wholly  suppress  the  utterance  of  them.  It  was 
my  principal  intention  to  hold  them  up  to  my  countrymen,  not  as 
statesmen  and  patriots,  but  as  scholars,  as  lovers  of  literature,  as 
eminent  examples  of  the  excellence  of  the  union  of  ancient  learn- 
ing with  modern  philosophy.  Their  youth  was  disciplined  in  clas- 
sical studies  ;  their  active  life  was  instructed  by  the  prescriptive 
wisdom  of  antiquity  ;  their  old  age  was  cheered  by  its  delightful 
reminiscences.  To  them  belongs  the  fine  panegyric  of  Cicero, 
"  Erant  in  eis  plurimae  litterse,  nee  eae  vulgares,  sed  interiores  quae- 
dam,  et  reconditae  ;  divina  memoria,  summa  verborum  et  gravitas 
et  elegantia  ;  atque  haec  omnia  vita?  decorabat  dignitas  et  integritas." 

I  will  ask  your  indulgence  only  for  a  moment  longer.  Since  our 
last  anniversary,  death  has  been  unusually  busy  in  thinning  our 
numbers.  I  may  not  look  on  the  right,  or  the  left,  without  missing 
some  of  those,  who  stood  by  my  side  in  my  academic  course,  in 
the  happy  days  spent  within  yonder  venerable  walls. 

"  These  are  counsellors,  that  feelingly  persuade  us,  what  we  are," 
and  what  we  must  be.  Shaw  and  Salisbury  are  no  more.  The 
one,  whose  modest  worth  and  ingenuous  virtue  adorned  a  spotless 
life  ;  the  other,  whose  social  kindness  and  love  of  letters  made  him 
welcome  in  every  circle.  But  what  shall  I  say  of  Haven,  with 
whom  died  a  thousand  hopes,  not  of  his  friends  and  family  alone, 
but  of  his  country  ?  Nature  had  given  him  a  strong  and  brilliant 
o-enius  ;  and  it  was  chastened  and  invigorated  by  grave,  as  well  as 
elegant  studies.  Whatever  belonged  to  human  manners  and  pur- 
suits, to  human  interests  and  feelings,  to  government,  or  science,  or 
literature,  he  endeavoured  to  master  with  a  scholar's  diligence  and 
taste.  Few  men  have  read  so  much,  or  so  well.  Few  have  united 
such  manly  sense  with  such  attractive  modesty.     His  thoughts  and 


PHI    BETA    KAPPA    DISCOURSE. 


33 


his  style,  his  writings  and  his  actions,  were  governed  by  a  judg- 
ment, in  which  energy  was  combined  with  candor,  and  benevo- 
lence with  deep,  unobtrusive,  and  fervid  piety.  His  character  may- 
be summed  up  in  a  single  line,  for  there 

"  was  given 
To  Haven  every  virtue  under  Heaven." 

He  had  just  arrived  at  the  point  of  his  professional  career,  in 
which  skill  and  learning  begin  to  reap  their  proper  reward.  He 
was  in  possession  of  the  principal  blessings  of  life,  of  fortune, 
of  domestic  love,  of  universal  respect.  There  are  those,  who  had 
fondly  hoped,  when  they  should  have  passed  away,  he  might  be 
found  here  to  pay  a  humble  tribute  to  their  memory.  To  Provi- 
dence it  has  seemed  fit  to  order  otherwise,  that  it  might  teach  us 
"  what  shadows  we  are,  and  what  shadows  we  pursue."  We  may 
not  mourn  over  such  a  loss,  as  those  who  are  without  hope.  That 
life  is  not  too  short,  which  has  accomplished  its  highest  destiny  ; 
that  spirit  may  not  linger  here,  which  is  purified  for  immortality. 


DISCOURSE 


PRONOUNCED  AT  THE  REQUEST  OF  THE  ESSEX  HISTORICAL  SOCIETY,  SEP- 
TEMBER 18,  1828,  IN  COMMEMORATION  OF  THE  FIRST  SETTLEMENT  OF 
SALEM,  MASS. 


There  are  certain  epochs  in  the  history  of  nations,  which  always 
attract  to  themselves  a  lasting  interest.  They  constitute  steps  in 
the  progress  or  decline  of  empire,  at  which  we  involuntarily  pause 
to  look  back  upon  the  past,  or  to  spell  out  the  fortunes  of  the 
future.  They  become  associated  with  our  inmost  feelings  and 
profoundest  reflections.  Our  imaginations  embody  the  time,  the 
place,  and  the  circumstances.  We  drop  the  intermediate  distances 
of  space  and  years,  which  divide  us  from  them.  We  breathe  the 
very  air  and  spirit  of  the  age  itself.  We  gather  up  the  fragments 
of  broken  facts,  as  history  or  tradition  has  scattered  them  around 
us.  We  arrange  them  with  a  fond  solicitude  ;  and  having  dressed 
them  out  in  all  the  pride  and  pomp  of  fair  array,  our  hearts  kindle 
at  the  contemplation  ;  and  we  exult  or  mourn,  glow  with  confidence 
or  bow  with  humiliation,  as  they  pass  before  us,  and  we  realize 
their  connexion  with  ourselves,  the  glory  of  our  country,  or  the  fate 
of  the  world. 

Of  memorable  events,  few  awaken  a  more  lively  curiosity  than 
the  origin  of  nations.  Whence  we  sprung,  at  what  period,  from 
what  race,  by  what  causes,  under  what  circumstances,  for  what 
objects,  are  inquiries  so  natural,  that  they  rise  almost  spontaneously 
in  our  minds  ;  and  scarcely  less  so  in  the  humblest  than  in  the 
most  exalted  of  society.  They  are  intimately  connected  with  our 
pride  our  character,  our  hopes,  and  our  destiny.  He,  who  may 
look  back  upon  a  long  line  of  illustrious  ancestors,  cannot  forget 
that  the  blood,  stirring  in  his  own  veins,  is  drawn  from  a  common 
source ;  and  that  the  light,  reflected  by  their  virtues,  casts  upon  his 


CENTENNIAL    DISCOURSE.  35 

own  path  a  cheering,  even  though  it  may  be  a  distant,  radiance. 
And  he,  who  may  not  claim  kindred  with  the  mighty  dead,  feels 
that  they  are  the  common  inheritance  of  his  country,  and  that  he 
has  a  right  to  share  in  their  fame,  and  triumph  in  their  achieve- 
ments. 

Nor  let  it  be  supposed,  that  this  strong  propensity  of  our  nature 
is  attributable  to  the  indulgence  of  mere  personal  or  national  van- 
ity. It  has  a  higher  and  better  origin.  It  is  closely  interwoven  with 
that  reverence  and  affection,  with  which  we  regard  our  parents,  and 
the  patriarchs  of  our  own  times  ;  with  that  gratitude,  with  which 
we  follow  the  benefactors  of  our  race ;  with  that  piety,  which  reads 
in  every  event  the  superintendence  of  a  wise  and  benevolent 
Providence  ;  with  that  charity,  which  binds  up  our  interests  in  those 
of  mankind  at  large  ;  with  that  sympathy,  which  links  our  fate 
with  that  of  all  past  and  future  generations  ;  and  with  that  sense  of 
duty,  which  the  consciousness  of  trusts  of  unmeasured  extent  never 
fails  to  elevate  and  strengthen.  Above  all,  we  are  thus  enabled  to 
extract  from  remote  events  that  instruction,  which  the  vicissitudes 
of  human  life  should  press  home  to  our  own  business  and  bosoms. 
The  toils  and  misfortunes  incident  to  infant  settlements  ;  the  slow 
progress  even  of  successful  effort ;  the  patience,  fortitude,  and 
sagacity,  by  which  evils  are  overcome  or  diminished  ;  the  funda- 
mental causes,  which  quicken  or  retard  their  growth ;  these  all 
furnish  lessons,  which  improve  the  wise,  correct  the  rash,  and  alarm 
the  improvident. 

Two  hundred  years  have  just  elapsed,  since  our  forefathers 
landed  on  these  shores  for  the  permanent  plantation  of  New  Eng- 
land. I  say  emphatically,  for  the  permanent  plantation  of  New 
England.  There  had  been,  before  that  period,  various  adventurers, 
who,  from  curiosity,  or  necessity,  or  hope  of  gain,  explored  the 
coast ;  but  their  purposes  were  transient,  or  their  stay  short. 
There  had  been  here  and  there  little  establishments  for  fishery  or 
trade,  successively  taken  up  and  abandoned,  from  the  rigors  of  the 
climate,  the  unprofitableness  of  the  employment,  or  the  disappoint- 
ments naturally  following  upon  such  novel  enterprises.  Few  per- 
sons, comparatively  speaking,  had  turned  their  thoughts  to  this,  as 
a  land  favorable  for  the  cultivation  of  the  soil,  or  the  arts  of  social 
life.  It  promised  little  to  the  European,  who  should  leave  his 
native  country  with  a  fancy  warm  with  descriptions  of  the  luxuri- 
ance of  this  western  world,  and  hoping  to  pass  the  residue  of  his 
life,  as  "  one  long  summer  day  of  indolence  "  and  ease.     It  offered 


36  LITERARY    DISCOURSES. 

no  mines,  glittering  with  gold  and  silver,  to  tempt  the  avarice  of  the 
selfish,  or  to  stimulate  the  hopes  of  the  ambitious.  It  presented 
an  irregular  and  rocky  front,  lashed  by  the  waves  of  a  stormy 
ocean,  and  frowning  with  dark  forests  and  bleak  promontories.  Its 
rough  and  stubborn  soil  yielded  with  reluctance  to  the  labors  of  the 
husbandman  ;  and  the  severities  of  a  northern  winter,  for  almost 
half  the  year,  stripped  the  earth  of  its  vegetation  by  its  bitter  blasts 
or  drifting  snows.  It  required  stout  hands  and  stouter  hearts  to 
encounter  such  discouragements  ;  to  subdue  the  ruggedness  of  na- 
ture, and  to  wait  the  slow  returns,  which  perseverance  and  industry 
alone  could  reasonably  hope  to  obtain.  Men  must  have  strong 
motives  to  lead  them,  under  such  circumstances,  to  such  a  choice. 
It  was  not  an  enterprise,  which,  being  conceived  in  a  moment  of 
rashness,  might  by  its  quick  success  plead  its  own  justification.  It 
had  none  of  the  allurements  of  power,  or  the  indulgences  of  pleas- 
ure, or  the  offerings  of  fame,  to  give  it  attractions.  Higher  motives 
and  deeper  thoughts,  such  as  engross  the  passions  and  the  souls  of 
men,  and  sink  into  comparative  insignificance  the  comforts  of  social 
life,  are  alone  adequate  to  produce  such  results.  One  might  well 
say,  as  Tacitus  did  of  the  Germany  of  his  own  times,*  "  Quis  porro, 
praeter  periculum  horridi  et  ignoti  maris,  Asia  aut  Africa  aut  Italia 
relicta,  Cermaniam  peteret,  informem  terris,  asperam  ccelo,  tristem 
cultu  aspectuque,  nisi  si  patria  sit?"  Who,  independently  of  the 
perils  of  a  terrific  and  unknown  sea,  would  leave  the  soft  climates 
of  Asia,  Africa,  or  Europe,  and  fix  his  abode  in  a  land  rough  and 
uncultivated,  with  an  inclement  sky  and  a  dreary  aspect,  unless 
indeed  it  were  his  mother  country  ? 

It  should  excite  no  surprise,  therefore,  that  a  century  had  passed 
away  after  the  Cabots  discovered  the  southern  part  of  this  continent, 
and  yet  the  Aborigines  remained  there  in  undisturbed  security. 
Even  the  neighbouring  colony  of  Plymouth,  where  the  renowned 
Pilgrims,  under  Carver,  Bradford,  and  Winslow,  had  already  raised 
the  standard  of  liberty  and  the  cross,  was  encountering  the  severest 
trials,  and  struggling  almost  for  existence.  There  were  not  a  few 
friends,  who  began  to  entertain  fears,  that  unless  succours  came  in 
from  other  quarters,  this  noble  band  of  worthies,  worn  down  by 
hardships  and  discouragements,  might  be  destined,  at  no  distant 
period,  to  follow  the  fate  of  other  adventurers,  or  be  reduced  to  a 


*•  Hutchinson,  in  his  History  (vol.  i.  p.  2.)  cites  the  passage.    It  i»  from  Tacitus, 
De  Germanid,  c.  2. 


CENTENNIAL    DISCOURSE.  37 

narrow  factory.*  Their  original  scheme  of  colonization  involved 
in  it  some  fatal  defects,  which  were  afterwards  corrected  by  their 
own  wisdom  and  experience.  The  notion  of  a  community  of 
property  and  profits  was  utterly  incompatible  with  the  growth  of  a 
state.  It  cut  off,  at  a  blow,  every  excitement  to  individual  enter- 
prise ;  and,  by  its  unequal  distribution  of  burthens  and  benefits,  sowed 
far  and  wide  the  elements  of  discord.  The  followers  of  the  excel- 
lent Robinson  might,  indeed,  comfort  themselves  with  the  present 
possession  of  a  refuge  from  religious  oppression  ;  but  the  possibility 
of  a  dissolution  of  their  connexion  at  any  period,  however  remote, 
must,  whenever  it  was  suggested,  have  filled  their  hearts  with  sor- 
row, and,  even  when  least  indulged,  sometimes  have  disturbed  their 
peace.  Their  own  language,  in  defence  of  their  settlement  at 
Hartford,  affords  a  striking  picture  of  their  situation.  "  They  lived 
upon  a  barren  place,  where  they  were  by  necessity  cast ;  and 
neither  they,  nor  theirs,  could  long  continue  upon  the  same  ;  and 
why  should  they  be  deprived  of  that,  which  they  had  provided, 
and  intended  to  remove  to,  as  soon  as  they  were  able  ? "  f  At  the 
distance  of  ten  years  from  their  first  landing,  the  colony  could 
scarcely  number  three  hundred  inhabitants  ;  %  a  proof,  at  once,  of 
the  magnitude  of  their  difficulties,  and  of  the  heroic  zeal  and  perse- 
verance, which  met  them  without  shrinking  or  dismay. 

By  the  blessing  of  God,  however,  our  Fathers  also  came  hither, 
and,  in  connexion  with  the  good  "  Old  Colony,"  fixed  henceforth, 
and,  as  we  fondly  trust,  for  ever,  the  settlement  and  destiny  of  New 
England.  And  we  are  met,  on  the  very  spot  first  trodden  by  their 
footsteps,  on  the  very  day  first  welcoming  their  arrival,  to  celebrate 
this  memorable  event.  It  is  fit,  that  we  should  so  do.  What 
occasion  could  occur  more  worthy  of  our  homage  ?  What  recol- 
lections could  rise  up,  better  adapted  to  awaken  our  gratitude,  cheer 
our  hearts,  and  elevate  our  thoughts  ?  Who  is  he  that  can  survey 
this  goodly  land,  and  not  feel  a  present  sense  of  its  various  bless- 
ings ?  Let  him  cast  his  eyes  over  our  mountains,  or  our  vallies, 
our  deep  forests,  or  our  cultivated  plains.  Let  him  visit  our  villa- 
ges, and  hamlets,  and  towns,  thickening  on  every  side,  and  listen 
to  the  sounds  of  busy,  contented,  thrifty  industry.  Let  him  view 
the  green  meadows,  and  the   waving  fields,  and   the  rich  orchards, 

*  2  Hutch.  Hist.  468,469,470,  472,  476;  Prince's  Annals,  26S ;  Robertson's 
America,  book  10;  3  Hist.   Collect.  417. 

t  2  Hutch.   Hist.  469,  &c. 

t  Robertson's  America,  book  x.  p.  267  ;  Chalmers's  Annals,  p.  97.  See  also 
the  Commissioners'  Report  in  1665  (3  Hutch.  Collect.  417). 


38  LITERARY    DISCOURSES. 

rising  under  his  eyes  in  alternate  order,  yielding  their  products  in 
profusion,  and  quickened  into  fertility  by  the  labors  of  man.  Let 
him  hold  communion  with  the  inhabitants  of  these  peaceful  abodes, 
with  the  mountaineers,  and  peasants,  and  yeomen,  the  lords  of  the 
soil,  the  reapers  of  their  own  harvests,  who  look  proudly  down 
upon  their  own  inheritance.  Let  him  learn  from  them  the  resolute 
spirit,  the  manly  virtues,  the  intelligence  and  piety,  which  pervade 
New  England.  Let  him  glance  at  the  neighbouring  metropolis ; 
its  splendid  spires  glittering  in  the  sun ;  its  noble  hospitals  and 
public  charities ;  its  crowded  and  well-built  streets ;  its  beautiful 
harbour,  floating  on  its  bosom  the  commerce  of  the  world,  and 
reflecting  on  its  surface  islands,  and  islets,  and  shores  of  ever  vary- 
ing magnificence ;  its  amphitheatre  of  hills,  whose  gentle  slopes 
whiten  with  neat  mansions,  or  soften  into  shade,  under  the  joint 
ministry  of  nature  and  art ;  its  lofty  halls,  where  eloquence  has 
burst  forth  in  strains  of  patriotism,  which  have  made  captive  the 
souls  of  thousands;  its  visible  industry,  and  enterprise,  and  public 
spirit,  gathering  into  the  lap  of  a  common  mother  the  products  of 
all  climates,  and  spreading  out  a  generous  hospitality.  Let  him 
catch,  in  the  distant  reach,  the  walls  of  our  venerable  University, 
cemented  by  the  solid  strength  of  centuries,  where  learning  and 
religion  obtained  their  early  glory,  and  will,  we  trust,  receive  their 
latest  praise.  Let  him,  I  say,  contemplate  these  scenes,  and 
survey  this  goodly  heritage  ;  and  who  is  he,  even  though  a  stranger 
to  us  and  ours,  whose  voice  shall  not  eagerly  ask  our  lineage,  our 
ancestry,  our  age  ?  Who  is  he,  that  here  inhales  his  natal  air,  and 
embraces  his  mother  earth,  and  does  not  rejoice,  that  he  was  born 
for  this  day,  and  is  privileged  to  pour  out  his  thanks,  and  offer  up 
his  prayers  at  the  home  of  his  forefathers  ? 

To  us,  indeed,  who  own  the  local  genius,  and  feel  the  inspira- 
tions of  the  place,  the  day  may  well  be  presumed  to  be  crowded 
with  thick-coming  fancies  and  joyance.  We  may  not  turn  our  eyes 
on  any  side,  without  meeting  objects  to  revive  the  images  of  the 
primitive  times.  We  can  still  realize  the  fidelity  of  the  description 
of  the  voyager  of  1629,  who  said,  "  We  passed  the  curious  and 
difficult  entrance  into  the  large,  spacious  harbour  of  Naimkeake ; 
and,  as  we  passed  along,  it  was  wonderful  to  behold  so  many  islands 
replenished  with  thick  wood,  and  high  trees,  and  many  fair  green 
pastures."  The  woods  have  disappeared ;  but  the  islands  and  the 
fair  green  pastures  remain  with  more  than  native  beauty  ;  and  the 
rivers  still  meander  in  their  early  channels.     This  "  city  of  peace," 


CENTENNIAL    DISCOURSE.  39 

so  called  by  our  fathers,  as  significant  of  their  enjoyment  of  civil 
and  religious  freedom,  still  boasts  its  ancient  name  ;  still  justifies 
the  original  allusion  to  the  scriptures,  "  In  Salem  also  is  God's 
tabernacle,  and  his  dwelling-place  in  Zion."  *  The  thin  and  scat- 
tered settlements  can  no  longer  be  traced.  But  in  their  stead,  are 
found  spacious  streets,  and  neat  dwellings,  and  lively  schools,  and 
numerous  churches,  and  busy  marts,  and  all  the  fair  accompani- 
ments of  opulence  and  knowledge,  simplicity  of  life  and  manners, 
unobtrusive  refinement,  and  social  kindness.  Yet,  in  the  midst  of 
these  blessed  changes,  we  can  point  out  the  very  spot,  where  the 
first  flock  was  gathered,  and  the  first  church  consecrated  to  the 
service  of  the  living  God ;  where  the  meek  and  learned  Higginson 
(alas,  how  soon  to  perish  !)  first  raised  his  voice  in  prayer,  and 
with  trembling  lips,  and  pale  cheeks,  where  sorrow  and  sickness 
had  worn  many  an  early  furrow,  discoursed  most  eloquently  of  life, 
and  death,  and  immortality,  the  triumphs  of  faith,  and  the  rewards 
of  obedience.  Yes,  it  is  still  devoted  to  the  same  holy  purpose. 
There,  the  voice  of  praise,  and  thanksgiving,  and  prayer  still 
ascends  from  pious  hearts  ;  there,  the  doctrines  of  salvation  are 
still  preached  with  enlightened  zeal  and  charity ;  there,  the  hum- 
ble, the  contrite,  and  the  pure  still  assemble  in  sweet  communion, 
and  worship  God  in  spirit  and  in  truth. f  The  sepulchres  of  our 
forefathers  are  also  among  us.  We  can  trace  them  through  all 
their  various  labors  to  their  last  appointed  home  ;  "  sedes  ubi  fata 
quietas  ostendunt."  Time  has  not  yet  levelled  the  incumbent  sod, 
nor  the  moss  overgrown  the  frail  memorials  erected  to  their  worth. 
But  their  noblest  monument  is  around  us,  and  before  us.  Their 
deeds  speak  their  eulogy  in  a  manner,  which  it  requires  no  aid  of 
language  to  heighten.  They  live  in  their  works  ;  not,  indeed,  in  the 
perishable  structures  of  human  skill,  in  marble  domes  or  triumphal 
arches,  in  temples  or  in  palaces,  the  wonders  of  art ;  but  in  the 
enduring  institutions,  which  they  created,  in  the  principles,  which 
they  taught,  and  by  which  they  sought  to  live,  and  for  which  they 
were  ready  to  die.  On  these  they  laid  the  solid  foundations  of  our 
strength  and  glory  ;  and  on  these,  if  on  any  thing  human,  may  be 
written  the  words  of  immortality.  Our  graveyards  offer  no  better 
epitaph  for  them  than  that,  Here  lie  the  Founders  of  New 
England  ;  and  brief  though  it  be,   and  of  simple  phrase,  it  has  a 

*  1  Historical  Collections,  117  ;   Psalm  lxxvi. 

t  See  the  excellent  dedication  sermon  of  the  Rev.  Mr.  Upham,  one  of  the 
pastors  of  this  church,  in  November,  1826. 


40  LITERARX    DISCOURSES. 

pregnant  meaning,  the  extent  of  which  no  human  mind  has  yet 
grasped.  It  can  he  unfolded  only  with  the  destiny  of  our  latest 
posterity. 

.May  I  venture  on  some  allusions  not  unbecoming  this  occasion, 
and  yet  of  a  nature  somewhat  personal,  though  not,  I  trust,  obtru- 
sive ?  I  speak  in  the  presence  of  the  descendants  of  these  men. 
Their  names  sound  with  familiar  welcome  in  our  streets,  and  greet 
us  on  every  side,  as  we  pass  along.  They  seem  to  live  again  in 
their  offspring.  Their  images  grace  our  processions,  and  throng 
our  churches,  and  enliven  our  festivals.  We  feel  almost  as  in  their 
conscious  presence,  and  listen  to  the  voices  of  other  days.  When, 
in  the  enthusiasm  of  poetry,  we  are  asked,  "  And  the  pilgrims, 
where  are  they  ?  "  where  are  Winthrop,  and  Endicott,  and  Hig- 
ginson,  and  Dudley,  and  Saltonstall,  and  Bradstreet,  and  Pickering, 
and  Sprague,  and  Pynchon,  and  Hathorne,  and  Conant,  and  Wood- 
bury, and  Palfrey,  and  Balch,  and  the  other  worthies?  we  are 
ready  to  exclaim,  —  They  are  here.  This  is  their  home.  These 
are  their  children. 

There  is  yet  among  us  one,  who  brings  their  revered  forms 
before  us  with  peculiar  dignity,  and  is  at  once  the  representative  of 
their  age  and  our  own.  Generation  after  generation  has  passed 
away,  and  yet  he  survives,  the  model,  and  the  monument  of  a 
century.  His  early  youth  almost  clasped  the  knees  of  the  pilgrims. 
He  was  familiar  with  their  sons,  and  listened  to  their  story  from  the 
lips  of  those,  who  painted  with  the  vividness  of  contemporaries, 
and  with  the  feelings  of  Puritans.  Standing  upon  the  very  verge 
of  the  first  century,  he  seems  the  living  herald  of  the  first  settlers, 
breathing  into  our  souls  their  very  words  and  sentiments,  as  one, 
who  speaks  not  for  the  dead,  but  for  those,  who  yet  sojourn  on  the 
earth.  Time  in  his  favor  has  relaxed  his  wonted  course,  and 
touched  even  the  faded  graces  of  the  past  with  a  kind  and  mellow- 
ing charm.  Jf  one  were  to  task  his  imagination  to  portray  a 
patriarch  of  primitive  simplicity,  warmed  with  the  refinements  of 
these  latter  days,  he  could  scarcely  clothe  the  being  of  his  own 
creation  with  other  qualities  than  we  have  seen.  He  could  not  fail 
to  point  out  to  us  a  form,  venerable  for  wisdom,  learning,  and 
modesty,  in  which  the  spirit  of  philosophy  and  benevolence  was 
sustained  by  meekness  and  piety  ;  in  which  hlamelessness  of  life, 
cheerfulness  of  heart,  and  gratitude  for  past  blessings,  imparted 
solid  lustre  to  a  faith,  and  hope,  and  joy,  resting  upon  immortality. 
Well  may  it  be  asked  of  such  a  being,  in  the  tender  language  of 


CENTENNIAL    DISCOURSE.  41 

Scripture,  "  And  the  old  man,  of  whom  ye  spake,  is  he  yet  alive  ?  " 
Your  own  hearts  have  already  answered  the  question.  We  have 
seen  this  centennial  patriarch  ;  and  we  count  it  among  the  triumphs 
of  this  day,  that  he  yet  lives,  the  delight  of  his  friends,  the  crown 
of  his  profession,  and  the  ornament  of  human  nature. 

Such  are  some  of  the  circumstances  and  associations,  belonging 
to  the  festival,  which  has  assembled  us  together.  I  am  but  too 
sensible,  how  utterly  inadequate  my  own  powers  are,  to  meet  the 
exigencies  of  such  a  day.  I  have  not  been  unconscious  of  the 
difficulties  of  the  task ;  and  I  now  stand  here  with  sincere  self- 
distrust,  having  yielded  to  a  sense  of  duty,  what  I  should  gladly 
have  declined,  if  left  to  my  own  choice.  After  all,  however,  the 
occasion  carries  along  with  it  its  own  means  of  gratification,  in  the 
thoughts  of  home,  and  kindred,  and  ancestry,  and  country,  which 
rise  in  every  heart,  and  hang  on  every  tongue.  If  I  falter  in  the 
course,  I  may  well  share  this  consolation,  since  a  common  sym- 
pathy must  disarm  the  severity  of  criticism. 

Many  topics,  appropriate  to  this  celebration,  have  already  been 
discussed  by  others,  in  a  manner,  which  does  not  require,  even  if  it 
should  admit  of  farther  illustration.  The  genius  of  New  England 
has  employed  some  of  its  best  efforts  to  add  dignity  to  the  scene. 
History  and  tradition  have  been  laid  under  contribution  to  adorn 
the  narrative ;  and  philosophy  itself,  while  studying  the  events,  has 
unfolded  speculations,  as  profound  and  engrossing  as  any,  which 
can  engage  the  human  mind.  I  profess  not  the  rashness  to  follow 
in  the  high  course  thus  marked  out ;  content  to  walk  in  the  ancient 
paths,  and  to  gather,  as  I  may,  the  gleanings  of  a  harvest,  which 
has  so  amply  rewarded  the  labors  of  my  predecessors. 

My  object  is  to  furnish  you  with  a  brief  sketch  of  the  origin  of 
the  colony ;  of  the  motives,  which  led  to  the  enterprise  ;  of  the 
characters  of  the  men,  who  conducted  it ;  of  the  principles,  upon 
which  it  was  established ;  and  of  the  grand  results,  which  it  has 
hitherto  developed.  I  shall  also  adventure  upon  some  topics, 
where  the  conduct  of  our  ancestors  has  been  severely  put  to  ques- 
tion ;  and,  without  attempting  to  disguise  their  mistakes,  I  trust  that 
something  may  be  said  to  rescue  their  memory  from  unmerited 
reproach. 

If  the  origin  of  nations  be,  as  it  confessedly  is,  a  source  of  deep 

interest,  there  are  circumstances  connected  with  the  first  settlement 

of  New  England  peculiarly   to  gratify  a  national  pride.     We  do 

not  trace  ourselves  back  to  times   of  traditionary  darkness,  where 

6 


42 


LITERARY    DISCOURSES. 


truth  and  fiction  are  blended  at  every  step,  and  what  remains,  after 
the  closest  investigation,  is  but  conjecture,  or  shadowy  fact.  We 
do  not  rely  upon  the  arts  of  the  poet  to  give  dignity  to  the  nar- 
rative, and  invest  it  with  the  colorings  of  his  imagination.  Greece 
might  delight  to  trace  her  origin  up  to  the  high  renown  and  an- 
tiquity of  Egypt ;  and  Rome  soothe  herself  with  her  rise  from  the 
smouldering  ruins  of  Troy.  We  have  no  legends,  which  genius 
may  fashion  into  its  own  forms,  and  crowd  with  imaginary  person- 
ages. Such  as  it  is,  our  history  lies  far  within  the  reach  of  the 
authentic  annals  of  mankind.  It  has  been  written  by  contempo- 
raries, with  a  simplicity,  which  admits  of  no  embellishment,  and  a 
fidelity,  which  invites  scrutiny.  The  records  are  before  us,  sketched 
by  the  first  adventurers;  and  there  we  may  learn  all  their  wan- 
derings, and  cares,  and  sufferings,  and  hopes,  their  secret  thoughts, 
and  their  absorbing  motives.  We  can  ask  of  the  world  no  credit 
for  modern  statements  of  old  events.  We  can  conceal  nothing ; 
and  our  true  glory  is,  that  there  is  nothing,  which  we  wish  to  con- 
ceal. And  yet,  I  think,  whoever  shall  read  these  annals  in  their 
minute  details ;  whoever  shall  brino-  home  to  his  thoughts  the 
causes  and  consequences  of  these  events  ;  whoever  shall  watch 
the  struggles  of  conscience  against  the  seductions  of  affection,  and 
the  pressure  of  dangers ;  will  feel  his  soul  touched  with  a  moral 
sublimity,  which  poetry  itself  could  not  surpass.  So  mighty  is 
truth  ;  so  irresistible  is  the  voice  of  nature. 

Take  but  a  single  passage  in  their  lives,  the  opening  scene  of 
that  drama,  on  which  we  seem  but  just  to  have  entered.  Go  back, 
and  meet  the  first  detachment,  the  little  band,  which,  under  the 
guidance  of  the  worthy,  intelligent,  and  intrepid  Endicott,  landed 
on  the  neighbouring  shore.  It  was  then,  as  it  is  now,  the  early 
advance  of  autumn.  What  can  be  more  beautiful  or  more  attrac- 
tive than  this  season  in  New  England  ?  The  sultry  heat  of 
summer  has  passed  away ;  and  a  delicious  coolness  at  evening  suc- 
ceeds the  genial  warmth  of  the  day.  The  labors  of  the  husband- 
man approach  their  natural  termination  ;  and  he  gladdens  with  the 
near  prospect  of  his  promised  reward.  The  earth  swells  with  the 
increase  of  vegetation.  The  fields  wave  with  their  yellow  and 
luxuriant  harvests.  The  trees  put  forth  their  darkest  foliage,  half 
shading  and  half  revealing  their  ripened  fruits,  to  tempt  the  appe- 
tite of  man,  and  proclaim  the  goodness  of  his  Creator.  Even  in 
scenes  of  another  sort,  where  nature  reigns  alone  in  her  own 
majesty,  there  is  much   to  awaken  religious  enthusiasm.     As  yet, 


CENTENNIAL    DISCOURSE.  43 

the  forests  stand  clothed  in  their  dress  of  undecayed  magnificence. 
The  winds,  that  rustle  through  their  tops,  scarcely  disturb  the 
silence  of  the  shades  below.  The  mountains  and  the  vallies  glow 
in  warm  green,  or  lively  russet.  The  rivulets  flow  on  with  a 
noiseless  current,  reflecting  back  the  images  of  many  a  glossy 
insect,  that  dips  his  wings  in  their  cooling  waters.  The  mornings 
and  evenings  are  still  vocal  with  the  notes  of  a  thousand  warblers, 
which  plume  their  wings  for  a  later  flight.  Above  all,  the  clear  blue 
sky,  the  long  and  sunny  calms,  the  scarcely  whispering  breezes, 
the  brilliant  sunsets,  lit  up  with  all  the  wondrous  magnificence  of 
light,  and  shade,  and  color,  and  slowly  settling  down  into  a  pure  and 
transparent  twilight.  These,  these  are  days  and  scenes,  which 
even  the  cold  cannot  behold  without  emotion ;  but  on  which  the 
meditative  and  pious  gaze  with  profound  admiration  ;  for  they 
breathe  of  holier  and  happier  regions  beyond  the  grave. 

But  lovely  as  is  this  autumn,  so  finely  characterized  as  the 
Indian  Summer  of  New  England,  and  so  favorably  contrasting 
itself  with  the  chills  and  moisture  of  the  British  Isles,  let  us  not 
imagine,  that  it  appeared  to  these  Pilgrims,  as  it  does  to  us,  clothed 
in  smiles.  Their  first  steps  on  this  continent  were  doubtless  with 
that  buoyancy  of  spirit,  which  relief  from  the  tediousness  and  dan- 
gers of  a  sea  voyage  naturally  excites.  But,  think  you,  that  their 
first  hasty  glances  around  them  did  not  bring  some  anxieties  for  the 
future,  and  some  regrets  for  the  past  ?  They  were  in  the  midst  of 
a  wilderness,  untrodden  by  civilized  man.  The  native  forests 
spread  around  them,  with  only  here  and  there  a  detached  glade, 
which  the  Indian  tomahawk  had  levelled,  or  the  fisherman  cleared 
for  his  temporary  hut.  There  were  no  houses  inviting  to  repose ; 
no  fields  ripening  with  corn  ;  no  cheerful  hearths  ;  no  welcoming 
friends  ;  no  common  altars.  The  heavens,  indeed,  shone  fair  over 
their  heads ;  and  the  earth  beneath  was  rich  in  its  beauties.  But 
where  was  their  home  ?  Where  were  those  comforts  and  endear- 
ments, which  that  little  word  crowds  into  our  hearts  in  the  midst  of 
the  keenest  sufferings  ?  Where  were  the  objects,  to  which  they 
might  cling  to  relieve  their  thoughts  from  the  sense  of  present  deso- 
lation ?  If  there  were  some,  who  could  say,  with  an  exile  of  the 
succeeding  year,  "  We  rested  that  night  with  glad  and  thankful 
hearts,  that  God  had  put  an  end  to  our  long  and  tedious  journey 
through  the  greatest  sea  in  the  world ; "  *  there  were  many,  whose 
pillows  were  wet  with  bitter,   though  not  repentant  tears.     Many  a 

*  3  Hutch.  Collect.  44 


44  LITERARY    DISCOURSES. 

father  offered  his  evening  prayer  with  trembling  accents ;  many  a 
mother  clasped  her  children  to  her  bosom  in  speechless  agony. 
The  morrow  came  ;  but  it  brought  no  abatement  of  anxiety.  It 
was  rather  a  renewal  of  cares,  of  sad  reminiscences,  of  fearful 
forebodings. 

This  is  no  idle  picture  of  the  fancy,  tricked  out  for  effect,  to 
move  our  sympathies,  or  blind  us  to  the  real  facts.  How  could 
their  situation  be  otherwise  ?  They  were  not  fugitives  from  justice, 
seeking  to  bury  themselves  and  their  crimes  in  some  remote  corner 
of  the  earth.  They  were  not  prodigals,  endeavouring  to  retrieve 
their  wrecked  fortunes  in  distant  adventures.  They  were  not  idle 
and  luxurious  wanderers,  weary  of  society,  and  panting  for  unex- 
plored novelties.  They  had  left  a  country  full  of  the  refinements 
of  social  life,  and  dear  to  them  by  every  human  tie.  There  were 
the  tombs  of  their  ancestors  ;  there,  the  abodes  of  their  friends  ;  of 
mothers,  who  kissed  their  pale  cheeks  on  the  seashore  ;  of  sisters, 
who  wrung  their  hands  in  sharp  distress  ;  of  children,  who  dropped 
upon  their  knees,  and  asked  a  blessing  at  parting,  aye,  at  parting 
for  ever.  There  was  the  last,  lingering  embrace  ;  there,  the  last 
sight  of  the  white  cliffs  of  England,  which  had  faded  from  their 
straining  gaze,  for  time,  and  for  eternity.  There,  for  the  last  time, 
were  uttered  from  their  broken  voices,  "  Farewell,  dear  England ; 
farewell,  the  church  of  God  in  England  ;  farewell,  all  Christian 
friends  there."  * 

They  were  now  landed  on  other  shores.  The  excitements  of 
the  voyage  were  gone.  Three  thousand  miles  of  ocean  rolled 
between  them  and  the  country  they  had  left ;  and  every  illusion  of 
hope  had  vanished  before  the  sober  realities  of  a  wilderness. 
They  had  now  full  leisure  for  reflection, 

"  while  busy,  meddling  memory, 
In  barbarous  succession  mustered  up 
The  past  endearments  of  their  softer  hours, 
Tenacious  of  its  theme." 

There  is  nothing  so  depressing  in  exile,  as  that  sickness  of  the 
heart,  which  comes  over  us  with  the  thoughts  of  a  lost,  distant 
home.  There  is  nothing,  which  softens  the  harsh  features  of 
nature,  like  the  feeling,  that  this  is  our  country.  The  exiles  of 
New  England  saw  not  before  them  either  a  home,  or  a  country. 
Both  were  to  be  created. 

*  Eliot's  Dictionary,  Art.  Higginson,  252. 


CENTENNIAL    DISCOURSE.  45 

If  the  past  could  bring  few  consolations,  the  future  was  not 
without  its  embarrassments.  The  season  was  passed,  in  which  any 
addition  could  be  made  to  their  scanty  stock  of  provisions  from  the 
produce  of  the  soil.  No  succours  could  reach  them  until  the  en- 
suing spring ;  and  even  then,  they  were  subject  to  many  contin- 
gencies. The  winter  must  soon  approach,  with  its  bleak  winds 
and  desolating  storms.  The  wild  beasts  were  in  the  woods  ;  and 
the  scarcely  less  savage  Indians  lurked  in  the  ravines,  or  accosted 
them  with  questionable  friendship.  Trees  were  to  be  felled,  and 
houses  built,  and  fortifications  arranged,  as  well  for  shelter  as  for 
safety  ;  and  brief  was  the  space,  and  feeble  the  means,  to  accom- 
plish these  necessary  defences.  Beyond  these,  were  the  unknown 
dangers  of  change  of  climate,  and  new  habits  of  life,  and  scanty 
food  ;  of  the  pestilence,  that  walketh  in  darkness,  and  the  famine, 
that  wasteth  at  noonday.  These  were  discouragements,  which 
might  well  appal  the  timid,  and  subdue  the  rash.  It  is  not,  then, 
too  much  to  affirm,  again,  that  it  required  stout  hands,  and  stouter 
hearts,  to  overcome  such  difficulties.     But 

"  If  misfortune  comes,  she  brings  along 
The  bravest  virtues." 

The  men,  who  landed  here,  were  no  ordinary  men ;  the  motive  for 
their  emigration  was  no  ordinary  motive  ;  and  the  glory  of  their 
achievement  has  few  parallels  in  the  history  of  the  world.  Their 
perseverance  in  the  midst  of  hardships,  their  firmness  in  the  midst 
of  dangers,  their  patience  in  the  midst  of  sufferings,  their  courage 
in  the  midst  of  disasters,  their  unconquerable  spirit,  their  unbending 
adherence  to  their  principles,  their  steady  resistance  of  all  en- 
croachments, surprise  us  even  more  than  the  wisdom  of  their  plans, 
and  the  success  of  their  operations. 

If  we  trace  on  the  colony  during  the  two  or  three  next  succeed- 
ing years,  in  which  it  received  an  accession  of  almost  two  thousand 
persons,  we  shall  find  abundant  reason  to  distrust  those  early  de- 
scriptions, of  which  the  just  complaint  was,  that  "  honest  men,  out 
of  a  desire  to  draw  over  others  to  them,  wrote  somewhat  hyper- 
bolically  of  many  things  here,"  and  "  by  their  too  large  commen- 
dations of  the  country,  and  the  commodities  thereof,  so  strongly 
invited  others  to  go  on  ;  "  *  and  to  express  our  astonishment,  that 
the  enterprise  was  not  instantly  abandoned.  Many  of  those,  who 
accompanied  Endicott,  died,  in  the  ensuing  winter,  by  disease  from 
exposure,  and  want  of  food  and  suitable  medical  assistance.     They 

*  Governor  Dudley's  Letter,  3  Hist.  Coll.  36,  38,  43. 


46  LITERARY    DISCOURSES. 

were  reinforced,  the  next  summer,  by  new  colonists  with  fresh 
supplies  ;  and  again  in  the  succeeding  year,  when  the  Corporation 
itself  was  also  removed,  under  the  auspices  of  Winthrop,  Dudley, 
Johnson,  Saltonstall,  and  others.  What  was  then  the  state  of  the 
Colony?  We  are  told  by  a  friend  and  eye-witness* — "We 
found  the  Colony,"  says  he,  "  in  a  sad  and  unexpected  condition  ; 
above  eighty  of  them  "  (that  is,  more  than  one  quarter  of  the 
whole  number)  "  being  dead  the  winter  before  ;  and  many  of  those 
alive,  weak  and  sick  ;  all  the  corn  and  bread  amongst  them  all,  hardly 
sufficient  to  feed  them  a  fortnight."  He  adds,  "  If  any  come  hither 
to  plant  for  worldly  ends,  that  can  live  well  at  home,  he  commits  an 
error,  of  which  he  will  soon  repent  him."  —  "  In  a  word,  we  have 
little  to  be  envied  ;  but  endure  much  to  be  pitied,  in  the  sickness 
and  mortality  of  our  people."  And  then,  in  the  conclusion  of  this 
memorable  letter,  he  breaks  out  with  the  unconquerable  spirit  of 
Puritanism  — "  We  are  left,  a  people  poor  and  contemptible,  yet 
such  as  trust  in  God  ;  and  are  contented  with  our  own  condition, 
being  well  assured,  that  he  will  not  fail  us,  nor  forsake  us."  Men, 
who  were  thus  prepared  to  encounter  such  distresses,  were  prepared 
for  every  thing.  The  stake  had  no  terrors  for  them  ;  and  earth 
had  no  rewards,  which  could,  for  a  moment,  withdraw  them  from  the 
dictates  of  conscience  and  duty. 

This  year  was,  indeed,  still  more  disastrous  than  the  preceding, 
and  robbed  them  of  some  of  their  brightest  ornaments.  Before 
December,  the  grave  had  closed  upon  two  hundred  of  their  number ; 
and  among  these  were  some  of  the  most  accomplished  of  both 
sexes.  It  is  impossible,  even  at  this  distance  of  time,  to  contem- 
plate their  character  and  fate,  without  the  deepest  sympathy. 
Higginson,  the  reverend  and  beloved  teacher  of  the  first  flock,  fell, 
an  early  victim,  in  the  forty-third  year  of  his  age,  and  the  first  of 
his  ministry.  Let  me  pause,  for  a  moment,  to  pay  a  passing  tribute 
to  his  worth.  He  received  his  education  at  Emanuel  College  in 
Cambridge,  where  he  was  so  much  distinguished  by  his  talents, 
acquirements,  and  scholarship,  that  he  gained  an  early  introduction 
into  a  benefice  of  the  church.  The  arguments  of  Hildersham  and 
Hooker,  however,  soon  infused  scruples  into  his  mind  respecting  the 
doctrines  and  discipline  of  the  establishment,  and  he  was  ejected 
for  nonconformity.  He  then  taught  a  few  pupils,  for  the  mainte- 
nance of  his  family  ;  and  having  received   an   invitation  to  remove 

*  Governor  Dudley's  Letter,  3  Hist.  Coll.  38. 


CENTENNIAL    DISCOURSE.  47 

to  New  England,  in  the  hope  of  restoring  his  health,  and  animated 
by  the  glorious  prospect  of  a  free  enjoyment,  as  he  expresses  it, 
"  of  the  true  religion  and  holy  ordinances  of  Almighty  God,"  he 
embarked,  with  his  family,  in  the  Talbot,  in  1629.  In  the  course  of 
the  voyage  he  had  the  misfortune  to  lose  one  of  his  daughters,  of 
whose  death  he  gives  us  an  account  in  his  journal,  drawn  up  with 
a  simplicity  beautifully  illustrative  of  his  own  character.  "  And 
so,"  says  he,  "  it  was  God's  will  the  child  died  about  five  o'clock 
at  night,  being  the  first  in  our  ship,  that  was  buried  in  the  bowels 
of  the  great  Atlantic  sea  ;  which,  as  it  was  a  great  grief  to  us,  her 
parents,  and  a  terror  to  all  the  rest,  as  being  the  beginning  of  a 
contagious  disease  and  mortality,  so  in  the  same  judgment  it  pleased 
God  to  remember  mercy  in  the  child,  in  forcing  it  from  a  world  of 
misery,  wherein  she  had  lived  all  her  days."  And,  after  an  allu- 
sion to  her  personal  infirmities,  he  concludes,  "  So  that  in  respect 
of  her,  we  had  cause  to  take  her  death  as  a  blessing  from  the  Lord 
to  shorten  her  misery." *  Alas  !  he  was  destined  too  soon  to 
follow  her.  Not  many  months  elapsed  before  a  consumption  settled 
on  his  cheeks,  and  by  its  hectic  flushes  betrayed  an  irretrievable 
decline.  He  died  with  the  composure,  resignation,  and  Christian 
confidence  of  a  saint ;  leaving  behind  him  a  character,  in  which 
learning,  benignity  of  manners,  purity  of  life,  fervent  piety,  and 
unaffected  charity,  were  blended  with  most  attractive  grace  ;  and 
his  name  is  enrolled  among  the  earliest  and  truest  benefactors  of 
New  England. 

A  death  scarcely  less  regretted,  and  which  followed  with  a  fear- 
ful rapidity,  was  that  of  a  lady  of  noble  birth,  elegant  accomplish- 
ments, and  exemplary  virtues.  I  speak  of  the  Lady  Arabella 
Johnson,!  a  daughter  of  the  Earl  of  Lincoln,  who  accompanied 
her  husband  in  the  embarkation  under  Winthrop,  and  in  honor  of 
whom,  the  admiral  ship  on  that  occasion  was  called  by  her  name. 
She  died  in  a  very  short  time  after  her  arrival ;  and  lies  buried 
near  the  neighbouring  shore.  No  stone  or  other  memorial  indicates 
the  exact  place  ;  but  tradition  has  preserved  it  with  a  holy  reve- 
rence. The  remembrance  of  her  excellence  is  yet  fresh  in  all  our 
thoughts  ;  and  many  a  heart  still  kindles  with  admiration  of  her 
virtues ;  and  many  a  bosom  heaves  with  sighs  at  her  untimely  end. 
What,  indeed,  could  be   more   touching  than   the   fate  of  such  a 

*  3  Hutch.  Collect.  32,  36. 

t  Her  name  is  commonly  spelt  in  the  records  of  that  day,  possibly  as  an  abbre- 
viation, "  Arbella." 


48  LITERARY    DISCOURSES. 

woman  ?  What  example  more  striking  than  hers,  of  uncompromis- 
ing affection  and  piety  ?  Born  in  the  lap  of  ease,  and  surrounded 
by  affluence  ;  with  every  prospect  which  could  make  hope  gay, 
and  fortune  desirable  ;  accustomed  to  the  splendors  of  a  court,  and 
the  scarcely  less  splendid  hospitalities  of  her  ancestral  home  ;  she 
was  yet  content  to  quit,  what  has,  not  inaptly,  been  termed  "  this 
paradise  of  plenty  and  pleasure,"  for  "a  wilderness  of  wants,"  and, 
with  a  fortitude  superior  to  the  delicacies  of  her  rank  and  sex,  to 
trust  herself  to  an  unknown  ocean  and  a  distant  climate,  that  she 
might  partake,  with  her  husband,  the  pure  and  spiritual  worship  of 
God.  To  the  honor,  to  the  eternal  honor  of  her  sex,  be  it  said, 
that  in  the  path  of  duty  no  sacrifice  is  with  them  too  high,  or  too 
dear.  Nothing  is  with  them  impossible,  but  to  shrink  from  what 
love,  honor,  innocence,  religion,  requires.  The  voice  of  pleasure 
or  of  power  may  pass  by  unheeded  ;  but  the  voice  of  affliction 
never.  The  chamber  of  the  sick,  the  pillow  of  the  dying,  the 
vigils  of  the  dead,  the  altars  of  religion,  never  missed  the  presence 
or  the  sympathies  of  woman.  Timid  though  she  be,  and  so  delicate, 
that  the  winds  of  heaven  may  not  too  roughly  visit  her ;  on  such 
occasions  she  loses  all  sense  of  danger,  and  assumes  a  preternatural 
courage,  which  knows  not,  and  fears  not  consequences.  Then  she 
displays  that  undaunted  spirit,  which  neither  courts  difficulties,  nor 
evades  them  ;  that  resignation,  which  utters  neither  murmur  nor 
regret ;  and  that  patience  in  suffering,  which  seems  victorious  even 
over  death  itself. 

The  Lady  Arabella  perished  in  this  noble  undertaking,  of 
which  she  seemed  the  ministering  angel  ;  and  her  death  spread 
universal  gloom  throughout  the  colony.  Her  husband  was  over- 
whelmed with  grief  at  the  unexpected  event,  and  survived  her  but 
a  single  month.  Governor  Winthrop  has  pronounced  his  eulogy  in 
one  short  sentence.  "  He  was  a  holy  man,  and  wise,  and  died  in 
sweet  peace."  He  was  truly  the  idol  of  the  people  ;  and  the  spot 
selected  by  himself  for  his  own  sepulture  became  consecrated  in 
their  eyes  ;  so  that  many  left  it  as  a  dying  request,  that  they  might 
be  buried  by  his  side.  Their  request  prevailed  ;  and  the  Chapel 
Burying-ground  in  Boston,  which  contains  his  remains,  became,  from 
that  time,  appropriated  to  the  repose  of  the  dead.*  Perhaps  the 
best  tribute  to  this  excellent  pair  is,  that  time,  which,  with  so  un- 

'  I  Hutch.  Hist.  16;  1  Winthrop's  Journal,  34;  Eliot's  Dictionary,  Art. 
Johnson. 


CENTENNIAL    DISCOURSE.  49 

sparing  a  band,  consigns  statesmen  and  heroes,  and  even  sages  to 
oblivion,  has  embalmed  the  memory  of  their  worth,  and  preserved 
it  among  the  choicest  of  New  England  relics.  It  can  scarcely  be 
forgotten,  but  with  the  annals  of  our  country. 

1  have  dwelt  with  some  particularity,  perhaps  with  undue  solici- 
tude, upon  some  of  the  circumstances  attending  the  emigration  of  our 
forefathers.  They  are  necessary  to  a  full  comprehension  of  the  diffi- 
culties of  the  enterprise,  and  of  the  sufferings,  which  they  bore,  I  will 
not  say  with  fortitude  merely,  but  with  cheerful,  unrepining  resolu- 
tion. It  is  not  by  a  few  set  phrases,  or  a  few  strong  touches,  that  we 
can  paint  their  sorrows,  or  their  struggles  ;  their  calmness,  when  their 
friends  were  falling  around  them,  and  themselves  were  placed  at  the 

"  dreadful  post 
Of  observation,  darker  every  hour;" 

or  their  courage,  at  the  approach  of  dangers  of  another  sort.  Many 
of  them  went  down  to  an  early  grave,  without  the  consolation,  even 
in  vision,  of  an  ultimate  triumph  ;  and  many,  who  lived  to  partake 
it,  grappled  with  hardships,  the  plain  recital  of  which  would  appal 
more  than  the  most  studied  exaggerations  of  rhetoric.  But,  let 
me  repeat  it,  thanks  be  to  God,  their  efforts  were  successful. 
They  laid  the  foundations  of  empire  in  these  northern  regions  with 
slow  and  thoughtful  labor.  Our  reverence  for  their  services  should 
rest,  not  upon  the  fictions  of  fancy,  but  upon  a  close  survey  of  their 
means  and  their  ends,  their  motives  and  their  lives,  their  characters 
and  their  actions.  And  I  am  much  mistaken,  if  that  close  survey 
does  not  invigorate  our  patriotism,  confirm  our  principles,  and 
deepen  and  widen  the  channels  of  our  gratitude. 

The  history  of  colonies,  both  in  ancient  and  modern  times,  may 
be  generally  traced  back  to  the  ambition  of  princes,  the  love  of 
adventure  or  gain,  the  pressure  of  poverty,  or  the  necessity  of  a 
refuge  from  political  oppressions.  The  ancient  nations,  for  the 
most  part,  transplanted  colonies  to  distant  regions,  to  extend  the 
boundaries  of  their  power,  and  consolidate  their  strength.  They 
were  sometimes  outposts  of  the  empire,  to  hold  in  check  a  con- 
quered province  ;  and  sometimes  military  stations,  to  overawe  and 
watch  a  formidable  rival.  The  beautiful  regions  of  Asia  Minor 
were  peopled  with  Grecian  tribes,  by  the  attractions  of  a  fertile  soil 
and  delicious  climate,  by  the  passion  for  conquest,  by  the  tempta- 
tions of  eastern  luxury,  and  by  the  ostracisms  of  successive  factions. 
Rome  gathered  them  within  the  folds  of  her  ample  domain,  as  the 
booty  of  her  arms  ;  and  pushed  her  own  colonies  only  where  tribute 
7 


50  LITERARY     DISCOURSES. 

was  to  be  exacted,  or  distant  conquests  secured.  The  whole  line 
of  her  colonies  in  Gaul.  Germany,  and  the  North,  was  but  a  chain 
of  military  communications,  to  intercept  the  inroads  of  the  barba- 
rians,  and  furnish  employment  for  leaders  and  legions,  too  restless 
and  too  ambitious  for  civil  life.  They  were  at  once  the  sources  of 
her  power,  and  her  weakness.  To  them  Rome  was  every  thing  ; 
and  the  colonies  they  occupied,  nothing,  except  as  resources  and 
depots  to  command  the  republic,  or  dictate  the  succession  to  the 
imperial  purple.  The  Capitol  was  but  too  often  obedient  to  the 
will  of  a  provincial  commander,  and  a  licentious  soldiery. 

The  colonies  of  modern  nations  owe  their  origin  almost  exclu- 
sively to  the  spirit  of  commerce.  If  power  has  mixed  itself  among 
the  objects  of  their  governments,  it  has  rather  been,  as  a  conse- 
quence of  commerce,  than  an  independent  motive.  Ships,  com- 
merce, and  colonies  were  so  long  associated  in  the  minds  of  European 
statesmen,  that  they  seemed  inseparable  accompaniments.  Hence 
arose  that  system  of  monopoly,  which  narrowed  down  all  trade  to 
the  mother  country,  and  stinted  the  growth  and  crippled  the  resour- 
ces of  the  colonies  to  the  measure  of  the  wants  of  the  former.  All 
Europe,  as  if  by  a  general  conspiracy,  acted  up  to  the  very  letter 
of  this  system  for  centuries.  The  general  practice  was,  like  that 
attributed  to  the  Dutch  in  respect  to  the  Spice  Islands,  to  destroy 
all  the  surplus,  beyond  that  which  would  yield  the  established  rate 
of  profits.  The  South  American  colonies  of  France,  Spain,  and 
Portugal  were  hermetically  sealed  against  the  approach  of  foreign 
ships,  until  the  mighty  revolutions  of  our  day  crumbled  the  whole 
system  into  dust,  and  opened,  almost  like  an  earthquake,  a  pathway 
through  their  interior.  Even  England  relaxed  her  grasp  with  a 
slow  and  reluctant  caution,  yielding  little,  except  to  necessity, 
indifferent  to  the  colonial  interests,  and  solicitous  only  that  the 
home  market  should  gather  up  and  distribute  all  the  profits  and 
products  of  the  Indies.  Her  famous  navigation  acts,  the  boast  of 
her  statesmen  from  the  times  of  Cromwell  down  to  ours,  are  an 
undisguised  appropriation  of  the  means  of  the  colonies  to  the  policy 
of  the  mother  country.  She  generally  left  the  plantations  to  the 
private  enterprise  of  her  subjects,  until  their  trade  was  worthy  of 
her  interference  ;  and  she  then  assumed  the  government  and  regu- 
lation of  them  for  her  own,  and  not  for  their  benefit.  Protection 
became  a  duty  only  at  the  time  when  it  seemed  no  longer  a  burden. 
Her  vast  empire  in  the  East,  the  wonder  of  our  day,  whose  fate 
furnishes  a  problem,  not  to  be  solved  by  any  former  experience,  is 


CENTENNIAL    DISCOURSE.  51 

but  the  ill-managed  contrivance  of  a  private  corporation  for  trade. 
It  affords  a  curious  example  of  the  spirit  of  conquest  engrafted  on 
the  spirit  of  commerce  ;  of  a  government  founded  on  calculations 
of  profit  ;  of  a  legislation  acting  on  the  industry  of  sixty  millions 
of  subjects,  wholly  without  representation  ;  of  a  judicial  establish- 
ment seeking  to  administer  justice  by  appeals  to  an  unknown  code, 
with  entire  good  faith,  but  wholly  inadequate  means  ;  of  a  political 
superintendence,  which  guards  against  external  violence,  but  which 
sits  down  contented,  while  provinces  are  plundered,  and  thrones 
are  overturned,  in  wars  brought  on  by  the  encroachments  of  com- 
merce. 

The  colonies,  planted  on  the  continent  of  North  America,  were 
in  a  great  measure  the  offspring  of  private  adventure  and  enterprise, 
and,  with  a  single  exception,  of  the  spirit  of  commerce.  That 
exception  is  New  England  ;  and  it  is  an  exception  as  extraordinary 
as  it  is  honorable.  We  owe  our  existence  to  the  love  of  religion  ; 
and,  I  may  say,  exclusively  to  the  love  of  religion.  I  am  aware, 
that  the  council  of  Plymouth  had  profitable  objects  in  view,  and 
that  capital  was  first  embarked,  and  a  charter  obtained,  to  accom- 
plish these  ends.  But  the  scheme  had  little  chance  of  success, 
and  was  in  fact  suspended,  if  not  entirely  abandoned.  The  first 
settlement  at  Plymouth  was  made  solely  from  motives  of  religion, 
without  any  charter,  and  even  without  any  title  to  the  land.  And 
it  was  not  until  the  charter  of  1628  was  obtained,  by  men  whose 
whole  hearts  were  devoted  to  religion,  that  the  same  impulse 
effected  the  colonization  of  Massachusetts.  This  is  not  left  to 
tradition  ;  but  it  is  the  sober  truth  of  history,  unquestioned,  because 
unquestionable.  It  has  the  highest  record  evidence  in  its  support. 
It  has,  if  possible,  even  weightier  proofs,  in  the  public  acts  of  the 
colony  ;  in  our  past  and  existing  institutions  ;  in  the  very  errors,  as 
well  as  the  virtues,  of  our  forefathers.  They  were  Christians  ;  they 
were  Puritans  ;  they  were  Christians  persecuted  by  Christians  ; 
they  were  Puritans  driven  into  exile  by  the  priesthood. 

The  influence  of  religion  upon  the  human  character  is  one  of 
the  most  interesting  studies  in  the  history  of  our  race.  But  the 
influence  of  Christianity,  whether  viewed  in  respect  to  the  extent 
of  its  reach,  or  the  nature  of  its  operations,  is  the  most  instructive 
of  all  speculations,  which  can  employ  the  intellect  of  man. 
Paganism  was  indulgent  in  its  general  policy  ;  for  it  taught  little  of 
duty,  and  claimed  no  exclusive  possession  of  the  oracles,  or  even 
of  the  favor  of  its  divinities.     In  truth,   it  floated   round  the  mind 


~yl  LITERARTf    DISCOURSES. 

with  a  loose  and  indeterminate  credit,  and  easily  admitted  into  its 
temples  the  worship  of  strange  gods;  sometimes  because  their  favor 
might  be  propitiated,  or  their  vengeance  averted  ;  sometimes,  per- 
haps, because  the  relative  power,  superiority,  and  office  of  each 
might  not  be  well  adjusted  in  their  mythology.  Quarrels  and 
divisions  about  faith  and  doctrines  were  of  very  rare  occurrence,  in 
the  heathen  world  ;  for  their  religion  dealt  more  in  rites  and  cere- 
monies than  in  fixed  belief.*  There  would  be  little  inclination  for 
public  struggles,  where  rewards  and  punishments  were  supposed  to 
be  administered,  not  according  to  desert,  but  according  to  the  favor, 
to  the  passions,  and  even  to  the  animosities  of  their  divinities. 
There  could  be  little  responsibility  cherished,  where  acts,  offensive 
to  some,  might  on  that  very  account  be  grateful  to  others  of  their 
gods.  Gibbon's  splendid  description  of  the  Roman  religion  is  true 
of  nearly  the  whole  ancient  world.  "  The  various  modes  of  wor- 
ship, which  prevailed  in  the  Roman  world,  were  all  considered  by 
the  people,  as  equally  true  ;  by  the  philosopher,  as  equally  false  ; 
and  by  the  magistrate,  as  equally  useful.  And  thus  toleration 
produced,  not  only  mutual  indulgence,  but  even  religious  con- 
cord."! 

Far  different  is  the  case  with  Christianity.  It  propounds  no 
equivocal  doctrines.  It  recognises  no  false  or  foreign  gods.  It 
allows  no  idolatrous  worship.  It  presents  to  all  men  one  Supreme 
Being  the  only  proper  object  of  worship,  unchangeable,  infinite, 
omniscient,  all-wise,  all-good,  all-powerful,  all-merciful,  the  God  of 
all,  and  the  Father  of  all.  It  developes  one  complete  system  of 
duties,  fit  for  all  times,  and  all  stations  ;  for  the  monarch  on  his 
throne,  and  the  peasant  in  his  cottage.  It  brings  all  men  to  the 
same  level,  and  measures  all  by  the  same  standard.  It  humbles  in 
the  dust  the  proud  and  the  arrogant ;  it  gives  no  heed  to  the  glory 
of  princes,  or  conquerors,  or  nobles.  It  exalts  the  lowly  virtues, 
the  love  of  peace,  charity,  humility,  forgiveness,  resignation, 
patience,  purity,  holiness.  It  teaches  a  moral  and  final  accounta- 
bility for  every  action.  It  proposes  sanctions  for  its  precepts  of  no 
earthly  reach  ;  but  such  as  arc  infinite,  unchangeable,  and  eternal. 
Its  rewards  are  the  promises  of  immortal  bliss  ;  its  punishments  a 
fearful  and  overwhelming  retribution.  It  excuses  no  compromises 
of  principle,  and  no  paltering  with  sin.  It  acknowledges  no  sacri- 
fices, but  of  a  broken  and  contrite  spirit ;  no  pardon,  but  by  repent- 

*   Bacon's  Essays ;  2  Bacon's  Works,  257. 

I    I  Gibbon's  Hist.  ch.  2,  p.  4(5 ;  Montesquieu's  Spirit  of  Laws,  b.  25,  ch.  15. 


CENTENNIAL    DISCOURSE.  53 

ance  of  heart  and  reformation  of  life.  In  its  view,  this  life  is  but 
the  entrance  upon  existence  ;  a  transitory  state  of  probation  and 
trial ;  and  the  grave  is  the  portal  to  that  better  world,  where  "  God 
shall  wipe  away  all  tears  from  our  eyes  ;  and  there  shall  be  no 
more  death,  neither  sorrow,  nor  crying,  neither  shall  there  be  any 
more  pain." 

To  minds  engrossed  by  such  thoughts,  and  fixed  in  such  belief, 
what  could  there  be  seducing,  or  satisfying,  in  the  things  of  this 
world  ?  It  would  be  impossible  for  them,  for  a  moment,  to  put  in 
competition  the  affairs  of  time  with  the  dazzling  splendors  and 
awful  judgments  of  eternity.  We  need  not  wonder,  therefore,  that 
Christianity  has  had,  in  all  ages,  and  in  all  sects,  its  devotees  and 
martyrs,  men  who  would  endure  every  evil,  rather  than  renounce  it, 
whether  it  wrere  exile,  or  forfeiture,  or  torture,  or  death  ;  that  per- 
secution should  have  been  at  no  loss  for  victims,  whenever  she  had 
lighted  her  fires  ;  and  that  in  the  very  moment  of  her  imagined 
triumph,  while  her  hands  were  yet  reeking  with  blood,  she  should 
have  felt  her  own  doom  sealed,  and  her  own  power  withered. 

The  Reformation  was  the  natural  result  of  causes,  which  had  been 
silently  working  their  way  from  the  first  dawn  of  the  revival  of 
letters.  Learning  stimulated  inquiry  ;  inquiry  created  doubt  ;  and 
doubt  brought  on  a  feverish  restlessness  for  knowledge,  which  must 
sooner  or  later  have  corrected  abuses  and  errors,  even  if  political 
causes  had  not  hastened  the  event.  Fortunately  for  England, 
fortunately  for  the  cause  of  religion,  in  its  most  catholic  sense,  the 
passions  of  a  sanguinary  and  sensual  monarch  effected,  at  a  single 
blow,  what  perhaps  it  would  otherwise  have  required  ages  to  ac- 
complish. The  controversy  of  Henry  the  Eighth  with  the  Papal 
See  arrested  the  attention  of  all  Europe,  and  produced  in  England 
a  deep  conviction  of  the  necessity  of  some  reformation  in  the 
Church.  It  was  of  course,  that  parties  should,  upon  such  an  occa- 
sion, rally  under  different  banners.  Many  of  the  dignitaries,  both 
of  the  Church  and  state,  resisted  every  innovation,  as  fraught  with 
evil ;  not  merely  from  a  blind  reverence  for  antiquity,  but  also  from 
that  sympathetic  dread  of  change,  which  belongs  to  the  habits  of 
mankind  in  all  ages.  Many  were  ardently  devoted  to  the  cause  of 
reform  ;  but  wished  to  touch  gross  abuses  only,  and  thus  to  pave 
the  way  for  gradual,  but  solid  improvements.  Many,  of  deeper 
thought,  and  warmer  zeal,  and  bolder  purposes,  deemed  it  matter 
of  conscience  to  root  out  every  error,  and  to  bring  back  Christianity 
at  once  to  what  they  esteemed  the  simplicity  of  the  Gospel.     To 


.">  1  LITERARY    DISCOURSES. 

this  la<=t  class  belonged  the  body  of  the  Puritans,  a  class  as  dis- 
tinguished for  learning,  talents,  probity,  and  disinterestedness,  as 
any  which  adorned  their  own  times.  It  is  a  mistake,  commonly 
enough  entertained,  that  they  were,  in  the  modern  sense,  Dissen- 
ters ;  that  they  were  hostile  to  episcopacy  in  every  shape;  and 
that  they  pushed  their  aims  to  the  overthrow  of  all  church  govern- 
ment. The  truth  was  far  otherwise.  Many  of  the  most  distin- 
guished among  them  were  reared  in  the  bosom  of  the  Church,  and 
sincerely  loved  its  venerable  forms.  Their  object  was  to  reform 
such  of  its  rites  and  ceremonies  only,  as  they  deemed  inconsistent 
with  the  Scriptures.  If,  in  the  course  of  events,  they  arrived  at 
different  conclusions,  it  was  because  prerogative  pressed  on  them 
with  a  heavy  hand ;  because  prelacy  became  the  instrument  of 
persecution  ;  because  the  laws  respecting  uniformity,  under  the 
famous  High  Commission  Court,  trampled  upon  their  rights  and 
consciences,  and  drove  them  to  examine  into  the  scriptural  founda- 
tions of  the  hierarchy.  In  all  their  struggles,  from  the  reign  of 
Henry  the  Eighth,  to  that  of  James  the  First,  the  Puritans  clung 
to  the  Establishment  with  a  sincerity  of  affection,  which,  considering 
their  sufferings  from  papacy  and  prelacy,  is  marvellous.  In  the 
farewell  address  of  our  forefathers,  at  the  very  moment  of  their 
departure  for  America,  it  breaks  out  into  expressions  of  warm  and 
filial  attachment.  We  "  esteem  it  our  honor,"  say  they,  "  to  call 
the  Church  of  England,  from  whence  we  rise,  our  dear  mother; 
and  cannot  part  from  our  native  country,  where  she  specially  re- 
sideth,  without  much  sadness  of  heart,  and  many  tears  in  our  eyes, 
ever  acknowledging,  that  such  hope  and  part,  as  we  have  obtained 
in  the  common  salvation,  we  have  received  in  her  bosom,  and 
sucked  it  from  her  breasts.  We  leave  it  not,  therefore,  as  loathing 
that  milk,  wherewith  we  were  nourished  there  ;  but,  blessing  God 
for  the  parentage  and  education,  as  members  of  the  same  body, 
shall  always  rejoice  in  her  good,  and  unfeignedly  grieve  for  any 
sorrow,  that  shall  ever  betide  her;  and,  while  we  have  breath,  sin- 
cerely desire  and  endeavour  the  continuance  and  abundance  of  her 
welfare,  with  the  enlargement  of  her  bounds  in  the  kingdom  of 
Christ  Jesus."  * 

The  Puritans  have  been  divided  by  an  accomplished  historian 
into  three  parties  ;  the  political  Puritans,  who  maintained  the  high- 
est principles  of  civil  liberty  ;  the  Puritans  in  discipline,  who  were 

*  1  Hutch.  Hist.  Appendix,  487,  488. 


CENTENNIAL    DISCOURSE.  55 

averse  to  the  ceremonies  and  episcopal  government  of  the  Church ; 
and  the  doctrinal  Puritans,  who  rigidly  defended  the  speculative 
opinions  of  the  first  reformers.  *  The  remark,  such  as  it  is,  is 
applicable  to  a  later  period  ;  for  at  the  emigration  of  our  ancestors, 
scarcely  any  divisions  in  doctrine  existed  among  the  Protestants  of 
England.  The  great  controversies  touched  the  rites  and  cere- 
monies, and  the  fasts  and  feasts  of  the  Church,  the  vestments  of  the 
priesthood,  kneeling  at  the  altar,  the  sign  of  the  cross,  and  the 
manner  of  celebrating  the  ordinances.  The  usages  of  the  Church, 
in  some  of  these  respects,  were  deemed  by  the  Puritans  unscrip- 
tural,  the  remnants  of  popery,  and  gross  corruptions  of  religion. 
In  the  sincerity  of  their  hearts,  they  could  not  practise  them  ;  in 
the  scruples  of  their  consciences,  they  felt  bound  to  reject  them. 
For  this  sincerity,  for  these  scruples,  they  were  expelled  from  their 
benefices ;  they  were  subjected  to  spiritual  censures ;  they  were 
loaded  with  temporal  punishments.  They  were  even  compelled, 
by  penalties,  to  attend  upon  a  public  worship,  which  they  abhorred, 
from  the  time  of  Elizabeth,  down  to  the  Revolution  of  1688.f 
The  language  of  the  haughty  James  to  them  was,  "  I  will  have 
but  one  doctrine,  and  one  discipline,  one  religion  in  substance  and 
in  ceremony."  %  And  he  denounced  them,  as  "  a  sect  unable  to 
be  suffered  in  any  well  governed  commonwealth."  §  As  if  to 
ensnare  their  consciences,  or  to  deride  their  scruples,  Archbishop 
Laud  enjoined  the  introduction  of  sports  on  Sunday,  a  day,  which, 
he  knew,  they  held  consecrated  solely  to  the  solemn  services  of 
religion.  For  nonconformity  to  these,  and  other  canonical  injunc- 
tions of  a  like  nature,  four  hundred  clergymen  were  ejected,  sus- 
pended, or  silenced  in  one  single  year  of  this  reign.  ||  With  an 
ill-omened  perseverance  in  the  same  bigoted  system,  Charles  the 
Second,  soon  after  his  restoration,  compelled  two  thousand  clergy- 
men, in  a  single  day,  to  relinquish  their  cures,  presenting  to  a 
licentious  court  the  noble  spectacle  of  men,  who  resigned  all 
earthly  preferments  to  their  religious  tenets. M  Yet  Mr.  Hume,  in 
bis  eager  apologies  for  royalty,  could  survey  such  scenes  with  phi- 
losophical indifference,  and  intimate  a  doubt,  whether  they  deserved 
the  appellation  of  persecution,  because  the  victims  were  Puri- 
tans.** 

*  6  Hume's  Hist.  ch.  li,  p.  272. 

1  6  Hume's  Hist.  163;  7  Hume's  Hist.  41,  516.  t  Prince's  Annals,  105. 

§  Ibid.  107.  ||  Ibid.  111.  IT  6  Hume's  Hist.  164. 

**  Hume's  Hist.  384. 


56  LITERARY    DISCOURSES. 

After  all,  it  is  not  in  the  power  of  the  scoffer,  or  the  skeptic; 
of  the  parasite,  who  fawns  on  courts,  or  the  proselyte,  who  doats 
on  the  infallibility  of  his  own  sect;  to  obscure  the  real  dignity  of 
the  character  of  the  Puritans.  We  may  lament  their  errors  ;  we 
may  regret  their  prejudices;  we  may  pity  their  infirmities;  we  may 
smile  at  the  stress  laid  by  them  on  petty  observances  and  trifling 
forms.  We  may  believe,  that  their  piety  was  mixed  up  with  too 
much  gloom  and  severity  ;  that  it  was  sometimes  darkened  by 
superstition,  and  sometimes  degraded  by  fanaticism  ;  that  it  shut  out 
too  much  the  innocent  pleasures  of  life,  and  enforced  too  strictly  a 
discipline,  irksome,  cheerless,  and  oppressive  ;  that  it  was  some- 
times over  rigid,  when  it  might  have  been  indulgent  ;  stern,  when 
it  might  have  been  affectionate  ;  pertinacious,  when  concession 
would  have  been  just,  as  well  as  graceful  ;  and  flashing  with  fiery 
zeal,  when  charity  demanded  moderation,  and  ensured  peace.  All 
this,  and  much  more,  may  be  admitted,  for  they  were  but  men, 
frail,  fallible  men,  and  yet  leave  behind  solid  claims  upon  the  reve- 
rence and  admiration  of  mankind.  Of  them  it  may  be  said,  with 
as  much  truth  as  of  any  men  that  have  ever  lived,  that  they  acted 
up  to  their  principles,  and  followed  them  out  with  an  unfaltering 
firmness.  They  display  eel,  at  all  times,  a  downright  honesty  of  heart 
and  purpose.  In  simplicity  of  life,  in  godly  sincerity,  in  tempe- 
rance, in  humility,  and  in  patience,  as  well  as  in  zeal,  they  seemed 
to  belong  to  the  apostolical  age.  Their  wisdom,  while  it  looked  on 
this  world,  reached  far  beyond  it  in  its  aim  and  objects.  They 
valued  earthly  pursuits  no  farther  than  they  were  consistent  with 
religion.  Amidst  the  temptations  of  human  grandeur  they  stood 
unmoved,  unshaken,  unseduced.  Their  scruples  of  conscience,  if 
they  sometimes  betrayed  them  into  difficulty,  never  betrayed  them 
into  voluntary  sin.  They  possessed  a  moral  courage,  which  looked 
present  dangers  in  the  face,  as  though  they  were  distant  or  doubt- 
ful, seeking  no  escape,  and  indulging  no  terror.  When,  in  defence 
of  their  faith,  of  what  they  deemed  pure  and  undefiled  religion,  we 
see  them  resign  their  property,  their  preferments,  their  friends,  and 
their  homes  ;  when  we  see  them  submitting  to  banishment,  and 
ignominy,  and  even  to  death  ;  when  we  see  them  in  foreign  lands, 
on  inhospitable  shores,  in  the  midst  of  sickness  and  famine,  in 
desolation  and  disaster,  still  true  to  themselves,  still  confident  in 
God's  providence,  still  submissive  to  his  chastisements,  still  thankful 
for  his  blessings,  still  ready  to  exclaim,  in  the  language  of  Scripture 
— "  We  are  troubled  on   every  side,  yet  not  distressed;  we  are 


CENTENNIAL    DISCOURSE.  57 

perplexed,  but  not  in  despair  ;  persecuted,  but  not  forsaken  ;  cast 
down,  but  not  destroyed  ;  "  when  we  see  such  things,  where  is 
the  man,  whose  soul  does  not  melt  within  him  at  the  sight  ?  Where 
shall  examples  be  sought  or  found,  more  full,  to  point  out  what 
Christianity  is,  and  what  it  ought  to  accomplish  ? 

What  better  origin  could  we  desire,  than  from  men  of  characters 
like  these  ?  Men,  to  whom  conscience  was  every  thing,  and 
worldly  prosperity  nothing.  Men,  whose  thoughts  belonged  to 
eternity  rather  than  to  time.  Men,  who,  in  the  near  prospect  of 
their  sacrifices,  could  say,  as  our  forefathers  did  say,  "  When  we 
are  in  our  graves,  it  will  be  all  one,  whether  we  have  lived  in 
plenty,  or  in  penury  ;  whether  we  have  died  in  a  bed  of  down, 
or  locks  of  straw.  Only  this  is  the  advantage  of  the  mean 
condition,  that  it  is  a  more  freedom  to  die.  And  the 
less  comfort  any  have  in  the  things  of  this  world,  the  more 
liberty  they  have  to  lay  up  treasure  in  heaven."  *  Men,  who,  in 
answer  to  the  objection,  urged  by  the  anxiety  of  friendship,  that 
they  might  perish  by  the  way,  or  by  hunger,  or  the  sword,  could 
answer,  as  our  forefathers  did,  "  We  may  trust  God's  providence 
for  these  things.  Either  he  will  keep  these  evils  from  us  ;  or  will 
dispose  them  for  our  good,  and  enable  us  to  bear  them."  f  Men, 
who,  in  still  later  days,  in  their  appeal  for  protection  to  the  throne, 
could  say  with  pathetic  truth  and  simplicity,  as  our  forefathers  did, 
"  That  we  might  enjoy  divine  worship  without  human  mixtures, 
without  offence  to  God,  man,  our  own  consciences,  with  leave,  but 
not  without  tears,  we  departed  from  our  country,  kindred,  and 
fathers'  houses  into  this  Patmos  ;  in  relation  whereunto  we  do  not 
say,  "  Our  garments  are  become  old  by  reason  of  the  very  long 
journey,"  but  that  ourselves,  who  came  away  in  our  strength,  are, 
by  reason  of  long  absence,  many  of  us  become  grey-headed,  and 
some  of  us  stooping  for  age."  J 

If  these  be  not  the  sentiments  of  lofty  virtue  ;  if  they  breathe 
not  the  genuine  spirit  of  Christianity  ;  if  they  speak  not  high 
approaches  towards  moral  perfection  ;  if  they  possess  not  an  endur- 
ing sublimity;  —  then,  indeed,  have  I  ill  read  the  human  heart; 
then,  indeed,  have  I  strangely  mistaken  the  inspirations  of  religion. 
If  men,  like  these,  can  be  passed  by  with  indifference,  because  they 
wore  not  the  princely  robes,  or  the  sacred  lawn,  because  they  shone 
not  in  courts,  or  feasted  in  fashionable  circles,  then,  indeed,  is  Chris- 

*  3  Hutch.  Collect,  p.  29.  t  Ibid.  29.  30.  t  Ibid.  328. 


58  LITERARY    DISCOURSES. 

tian  glory  a  vain  shadow,  and  human  virtue  a  dream,  about  which 
we  disquiet  ourselves  in  vain. 

But  it  is  not  so  —  it  is  not  so.  There  are  those  around  me,  whose 
hearts  beat  high,  and  whose  lips  grow  eloquent,  when  the  remem- 
brance of  such  ancestors  comes  over  their  thoughts  ;  when  they 
read  in  their  deeds,  not  the  empty  forms,  but  the  essence  of  holy 
living  and  holy  dying.  Time  was,  when  the  exploits  of  war,  the 
heroes  of  many  battles,  the  conquerors  of  millions,  the  men,  who 
waded  through  slaughter  to  thrones,  the  kings,  whose  footsteps  were 
darkened  with  blood,  and  the  sceptred  oppressors  of  the  earth, 
were  alone  deemed  worthy  themes  for  the  poet  and  the  orator,  for 
the  song  of  the  minstrel,  and  the  hosannas  of  the  multitude.  Time 
was,  when  feats  of  arms,  and  tournaments,  and  crusades,  and  the 
high  array  of  chivalry,  and  the  pride  of  royal  banners  waving  for 
victory,  engrossed  all  minds.  Time  was,  when  the  ministers  of  the 
altar  sat  clown  by  the  side  of  the  tyrant,  and  numbered  his  victims, 
and  stimulated  his  persecutions,  and  screened  the  instruments  of  his 
crimes  —  and  there  was  praise,  and  glory,  and  revelry  for  these 
things.  Murder,  and  rapine,  burning  cities,  and  desolated  plains, 
if  so  be  they  were  at  the  bidding  of  royal  or  baronial  feuds,  led  on 
by  the  courtier  or  the  clan,  were  matters  of  public  boast,  the 
delight  of  courts,  and  the  treasured  pleasure  of  the  fireside  tales. 
But  these  times  have  passed  away.  Christianity  has  resumed  her 
meek  and  holy  reign.  The  Puritans  have  not  lived  in  vain.  The 
simple  piety  of  the  Pilgrims  of  New  England  casts  into  shade  this 
false  glitter,  which  dazzled  and  betrayed  men  into  the  worship  of 
their  destroyers. 

It  has  been  said,  in  the  wantonness  of  folly,  or  the  presumptuous- 
ness  of  ignorance,  that  America  was  peopled  much  in  the  same 
way  as  Botany  Bay,  with  outcasts  and  convicts.  So  far  as  respects 
New  England;  there  could  not  be  a  more  flagrant  violation  of  the 
truth  of  history.  The  poor,  the  friendless,  and  the  oppressed  came, 
indeed,  hither.  But  their  sole  crime  was,  that  they  loved  God 
more  than  they  feared  man.  They  came,  too,  under  the  guidance 
of  men  elevated  by  their  rank,  their  fortune,  and  their  learning  in 
their  own  country.  Some  of  them  were  allied  to  noble  families, 
whose  graceful  honors  have  descended  to  our  days.  Many  of  them 
were  gentry  of  the  realm,  and  possessed  public  respect  from  their 
known  virtues  and  opulence.  Many  were  distinguished  for  high 
attainments  in  literature  and  science,  and  could  trace  back  their 
matriculations  to  the  Universities  of  Oxford  and  Cambridge.    Many 


CENTENNIAL    DISCOURSE.  59 

of  them  were  ripe  for  public  honors  at  home,  if  they  had  chosen 
to  remain  there.  Many  of  them  were  the  friends  and  compeers  of 
Cromwell,  and  Pym,  and  Hampden,  and  Milton,  and  other  illustri- 
ous men,  who,  in  the  midst  of  all  the  changes  of  party,  and  all  the 
studied  disparagements  of  royalty,  still  continue  to  attract  the  reve- 
rence of  mankind.  Need  I  name  Winthrop,  Dudley,  Endicott, 
Humphrey,  Saltonstall,  Johnson,  Nowel,  Bradstreet,  and  Pynchon  ? 
Or,  among  the  clergy,  Higginson,  Skelton,  Cotton,  Eliot,  Daven- 
port, Williams,  Wilson,  Norton,  Rogers,  and  Hooker ;  to  many  of 
whom  we  may,  with  the  honest  enthusiasm  of  Mather,  apply  the 
praise  of  Salmasius,  "  Vir  nunquam  satis  laudatus,  nee  temere  sine 
laude  nominandus."  * 

But  to  us  it  would  not  be  matter  of  regret,  much  less  of  reproach, 
if  the  case  were  far  otherwise  ;  if  we  could  count  among  our 
ancestors  only  the  humble,  the  poor,  and  the  forlorn.  Rank,  sta- 
tion, talents,  and  learning  did  indeed  add  lustre  to  their  acts,  and 
impart  a  more  striking  dignity  to  their  sufferings,  by  giving  them  a 
bolder  relief.  But  it  was  the  purity  of  their  principles,  their  integ- 
rity, and  devout  piety,  which  constituted  the  solid  fabric  of  their 
fame.  It  was  Christianity,  which  cast  over  their  character  its  warm 
and  glorious  light,  and  gave  it  an  everlasting  freshness.  It  was 
their  faith  in  God,  which  shed  such  beauty  over  their  lives,  and 
clothed  this  mortal  with  the  form  of  immortality.  In  comparison 
with  these,  the  distinctions  of  this  world,  however  high  or  various 
they  may  be,  are  but  evanescent  points,  a  drop  to  the  ocean,  an 
instant  to  eternity,  a  ray  of  light  to  the  innumerous  fires,  which 
blaze  on  unconsumed  in  the  skies.  This  is  not  the  poor  estimate 
of  man,  the  being  of  a  day  ;  it  is  the  voice  of  that  Revelation, 
which  has  spoken  to  our  hopes  and  fears  with  an  authority,  which 
rebukes,  while  it  convinces,  our  reason. 

Let  us  rejoice,  then,  at  our  origin,  with  an  honest  joy.  Let  us 
exultingly  hail  this  day  as  one  of  glorious  memory.  Let  us  proudly 
survey  this  land,  the  land  of  our  fathers.  It  is  our  precious  inheri- 
tance. It  was  watered  by  their  tears  ;  it  was  subdued  by  their 
hands  ;  it  was  defended  by  their  valor ;  it  was  consecrated  by  their 
virtues.  Where  is  the  empire,  which  has  been  won  with  so  much 
innocence  ?  Where  is  the  empire,  which  has  been  maintained  with 
so  much  moderation  ? 


*  See  Eliot's  Biog.  Dictionary,  Art.  Davenport;  2.  Hist.  Collect.  (2d  series) 
260. 


CO  LITERARY    DISCOURSES. 

I  pass  to  other  topics,  where  the  task  of  vindication  or  apology 
becomes  a  duty  of  the  day  ;  a  task,  which,  I  trust,  may  be  per- 
formed with  due  reverence  to  our  forefathers,  and  with  a  still 
greater  reverence  for  truth. 

It  has  been  said,  that  our  forefathers  were  bigoted,  intolerant, 
and  persecuting  ;  that  while  they  demanded  religious  freedom  for 
themselves,  they  denied  it  to  all  others  ;  that  in  their  eyes  even 
error  in  ceremony  or  mode  of  worship  was  equally  reprehensible 
with  error  in  doctrine  ;  and,  if  persisted  in,  deserved  the  temporal 
punishments  denounced  upon  heresy.  Mr.  Hume  *  has  dwelt  with 
no  small  complacency  upon  the  fact,  that  the  Puritans  "  maintained 
that  they  themselves  were  the  only  pure  Church  ;  that  their  prin- 
ciples and  practices  ought  to  be  established  by  law  ;  and  that  no 
others  ought  to  be  tolerated." 

I  am  not  disposed  to  deny  the  truth  of  the  charge,  or  to  conceal, 
or  to  extenuate  the  facts.  I  stand  not  up  here  the  apologist  for 
persecution,  whether  it  be  by  Catholic  or  Protestant,  by  Puritan  or 
Prelate,  by  Congregationalist  or  Covenanter,  by  Church  or  State, 
by  the  monarch  or  the  people.  Wherever,  and  by  whomsoever, 
it  is  promulgated  or  supported,  under  whatever  disguises,  for  what- 
ever purposes,  at  all  times,  and  under  all  circumstances,  it  is  a  gross 
violation  of  the  rights  of  conscience,  and  utterly  inconsistent  with 
the  spirit  of  Christianity.  I  care  not,  whether  it  goes  to  life,  or 
property,  or  office,  or  reputation,  or  mere  private  comfort,  it  is 
equally  an  outrage  upon  religion  and  the  unalienable  rights  of  man. 
If  there  is  any  right,  sacred  beyond  all  others,  because  it  imports 
everlasting  consequences,  it  is  the  right  to  worship  God  according 
to  the  dictates  of  our  own  consciences.  Whoever  attempts  to 
narrow  it  down  in  any  degree,  to  limit  it  by  the  creed  of  any  sect, 
to  bound  the  exercise  of  private  judgment,  or  free  inquiry,  by  the 
standard  of  his  own  faith,  be  he  priest  or  layman,  ruler  or  subject, 
dishonors,  so  far,  the  profession  of  Christianity,  and  wounds  it  in  its 
vital  virtues.  The  doctrine,  on  which  such  attempts  are  founded, 
goes  to  the  destruction  of  all  free  institutions  of  government. 
There  is  not  a  truth  to  be  gathered  from  history,  more  certain,  or 
more  momentous,  than  this,  that  civil  liberty  cannot  long  be  sepa- 
rated from  religious  liberty  without  danger,  and  ultimately  without 
destruction  to  both.  Wherever  religious  liberty  exists,  it  will,  first 
or  last,  bring  in,   and  establish   political  liberty.     Wherever  it  is 

*  6  Hume's  Hist.  164. 


CENTENNIAL    DISCOURSE.  61 

suppressed,  the  Church  establishment  will,  first  or  last,  become  the 
engine  of  despotism  ;  and  overthrow,  unless  it  be  itself  overthrown, 
every  vestige  of  political  right.  How  it  is  possible  to  imagine,  that 
a  religion,  breathing  the  spirit  of  mercy  and  benevolence,  teaching 
the  forgiveness  of  injuries,  the  exercise  of  charity,  and  the  return 
of  good  for  evil  ;  how  it  is  possible,  1  say,  for  such  a  religion  to  be 
so  perverted,  as  to  breathe  the  spirit  of  slaughter  and  persecution, 
of  discord  and  vengeance,  for  differences  of  opinion,  is  a  most  unac- 
countable and  extraordinary  moral  phenomenon.  Still  more  extra- 
ordinary, that  it  should  be  the  doctrine,  not  of  base  and  wicked 
men  merely,  seeking  to  cover  up  their  own  misdeeds  ;  but  of  good 
men,  seeking  the  way  of  salvation  with  uprightness  of  heart  and 
purpose.  It  affords  a  melancholy  proof  of  the  infirmity  of  human 
judgment  ;  and  teaches  a  lesson  of  humility,  from  which  spiritual 
pride  may  learn  meekness,  and  spiritual  zeal  a  moderating  wisdom. 

Let  us  not,  then,  in  examining  the  deeds  of  our  fathers,  shrink 
from  our  proper  duty  to  ourselves.  Let  us  not  be  untrue  to  the 
lights  of  our  own  days,  to  the  religious  privileges,  which  we  enjoy, 
to  those  constitutions  of  government,  which  proclaim  Christian 
equality  to  all  sects,  and  deny  the  power  of  persecution  to  all. 
Our  fathers  had  not  arrived  at  the  great  truth,  that  action,  not 
opinion,  is  the  proper  object  of  human  legislation ;  that  religious 
freedom  is  the  birthright  of  man  ;  that  governments  have  no  au- 
thority to  inflict  punishment  for  conscientious  differences  of  opinion  ; 
and  that  to  worship  God  according  to  our  own  belief  is  not  only 
our  privilege,  but  is  our  duty,  our  absolute  duty,  from  which  no 
human  tribunal  can  absolve  us.  We  should  be  unworthy  of  our 
fathers,  if  we  should  persist  in  error,  when  it  is  known  to  us.  Their 
precept,  like  their  example,  speaking,  as  it  were,  from  their  sepul- 
chres, is,  to  follow  truth,  not  as  they  saw  it,  but  as  we  see  it, 
fearlessly  and  faithfully. 

Let  us  meet  the  charge  against  them  of  bigotry,  intolerance,  and 
persecution,  and  gather  from  it  instruction  and  admonition  for  our 
own  conduct.  Were  our  forefathers  singular  in  this  respect  ?  Does 
the  reproach,  if  reproach  it  be,  that  men  do  not  live  up  to  truths, 
which  they  do  not  comprehend,  rest  upon  them  alone  ?  So  far 
from  this  being  true,  there  was  not,  at  that  time,  in  all  Christendom, 
a  single  spot,  however  remote,  in  which  the  freedom  of  religious 
opinion  was  supported  by  prince  or  people.  Throughout  all  Eu- 
rope, if  we  except  Holland,   the   practice  of  burning  heretics  still 


62  LITERARY    DISCOURSES. 

prevailed,  not  only  in  Catholic  but  in  Protestant  countries.  And 
even  in  Holland,  banishment  was  not  an  uncommon  punishment 
for  those,  who  obstinately  persisted  in  heresies  of  doctrine.*  What 
is  it,  then,  that  is  required  of  our  forefathers  ?  That  they  should 
have  possessed  a  wisdom  and  liberality  far  superior  to  their  own 
age  ;  —  that  they  should  have  acted  upon  truths  as  clear  and  settled, 
of  which  faint  glimmerings  only,  or  at  least  a  brief  and  dubious 
twilight,  had  then  shot  up  in  unsteady  streams  to  direct  their 
course  ;  —  that,  learned  as  they  were,  and  wide  as  were  their  re- 
searches, and  painful  as  was  their  diligence,  they  should  have  out- 
stripped all  others  in  the  race,  and  surmounted  the  prejudices  and 
prescriptions  of  twelve  centuries.  It  would  be  dealing  out  a  hard 
measure  of  justice  to  require  perfect  conformity  under  all  circum- 
stances to  our  own  sense  of  duty.  It  would  be  dealing  out  a  still 
harder  measure  to  press  upon  one  poor,  persecuted  sect  the  sins  of 
all  Christendom  ;  to  make  them  alone  responsible  for  opinions, 
which  had  become  sacred  by  their  antiquity,  as  well  as  their  sup- 
posed coincidence  with  Scripture.  Uniformity  of  faith  and  intoler- 
ance of  error  had  been  so  long  the  favorite  dogmas  of  all  schools 
of  theology  and  government,  that  they  had  ceased  to  be  examined. 
They  were  deemed  texts  for  the  preacher,  and  not  inquiries  for  the 
critic. 

I  am  aware,  that  in  the  writings  of  some  of  the  early  reformers 
there  may  be  found,  here  and  there,  passages,  which  recognise  the 
principles  of  religious  liberty.  But,  we  must  remember,  that  they 
were  uttered  in  the  heat  of  controversy,  to  beat  down  the  authority 
of  the  Romish  Church  ;  and  so  little  were  they  sustained  by  public 
opinion,  that  they  were  lamentably  forgotten  in  the  first  moments 
of  Protestant  victory.  They  were  mere  outworks  in  the  system 
of  theological  opinions,  which  might  form  a  defence  against  Catho- 
lic attacks  ;  and  were  treated  with  contempt  or  indifference,  when 
heresies  sprung  up  in  the  bosom  of  the  new  faith.  My  Lord  Bacon, 
in  his  discourse  upon  the  unity  of  religion,  written  with  a  modera- 
tion becoming  his  great  mind,  and  with  a  spirit  of  indulgence  far 
beyond  the  age,  has  nevertheless  contended  strenuously  for  the 
unity  of  faith,  and  declared,  that  "  heresies  and  schisms  are  of  all 
others  the  greatest  scandals."  At  the  same  time,  he  boldly  warns 
us  not  "  to  propagate  religion  by  wars,  or  by  sanguinary  persecu- 
tions to  force  consciences."  f     At   the   distance   of  a   century,  the 

*  6  Hume's  Hist.  57,  163;  7  Hume's  Hist.  20,  41,  515. 
!   :'  Bacon's  Works,  259. 


CENTENNIAL    DISCOURSE.  63 

enlightened  author  of  "  The  Spirit  of  Laws  "  avowed  the  doctrine, 
that  it  is  sound  policy,  when  the  state  is  already  satisfied  with  the 
established  religion,  not  to  suffer  the  establishment  of  another. 
And  while  he  declares,  that  penal  laws,  in  respect  to  religion,  ought 
to  be  avoided,  he  paradoxically  maintains  the  doctrine,  as  a  funda- 
mental principle,  that,  when  the  state  is  at  liberty  to  receive  or 
reject  a  new  religion,  it  ought  to  be  rejected  ;  when  it  is  received, 
it  ought  to  be  tolerated.*  So  slowly  does  truth  make  its  way,  even 
among  the  most  gifted  minds,  in  opposition  to  preconceived  opinions 
and  prejudices. 

Nay,  we  need  not  go  back  to  other  times  for  illustrative  exam- 
ples. Is  it  even  now  true,  that  the  doctrine  of  religious  liberty  is 
received  with  entire  approbation  in  Christendom  ?  Where  it  is 
received  with  most  favor,  is  it  not  recognised  more  as  matter  of 
toleration  and  policy,  than  of  right  ?  suffered,  rather  than  support- 
ed ?  connived  at  from  fear,  rather  than  vindicated  upon  principle  ? 
Even  in  England,  free  and  enlightened  as  she  is,  how  slow  and 
reluctant  has  been  the  progress  towards  a  generous  toleration  !  It 
is  scarcely  twelve  years  since  it  ceased  to  be  a  crime,  punishable 
with  fine  and  imprisonment,  to  deny  the  doctrine  of  the  Trinity. 
The  Universities  of  Oxford  and  Cambridge  are  still,  by  their  stat- 
utes, closed  against  the  admission  of  Dissenters  from  the  established 
Church.  For  more  than  a  century  and  a  half,  Protestant  Dissent- 
ers of  every  description  were  excluded  by  law  from  the  possession 
of  offices  of  trust  or  profit  in  the  kingdom.  The  repeal  of  the 
odious  corporation  and  test  acts,  by  which  this  exclusion  was 
guarded,  was,  after  much  resistance,  accomplished  only  at  the  last 
session  of  Parliament ;  and  the  celebrations  of  this  event,  of  this 
emancipation  from  religious  thraldom  of  one  third  of  her  whole 
population,  are  just  reaching  our  ears  from  the  other  side  of  the 
Atlantic.  The  Catholic  yet  groans  under  the  weight  of  disabilities 
imposed  upon  him  by  the  unrelenting  arm  of  power,  and  sickens  at 
the  annual  visitation  of  that  hope  of  relief,  which  mocks  him  at 
every  approach,  and  recedes  at  the  very  moment,  when  it  seems 
within  his  grasp.  Even  in  our  owrn  country,  can  we  lay  our  hands 
upon  our  hearts,  and  say  with  sincerity,  that  this  universal  freedom 
of  religion  is  watched  by  none  with  jealousy  and  discontent  ?  that 
there  are  none,  who  would  employ  the  civil  arm  to  suppress  heresy, 
or  to  crush  the  weaker  sects  ? 


Montesquieu's  Spirit  of  Laws,  book  25,  ch.  10,  12. 


64  LITERARY    DISCOURSES. 

With  what  justice,  then,  shall  we  require  from  the  Puritans  of 
James's  reign,  lessons  of  Christian  liberality,  which,  even  in  the 
nineteenth  century,  are  rejected  by  statesmen  and  patriots,  by  laity 
and  clergy,  in  regions  adorned  with  all  the  refinements  of  letters, 
and  the  lights  of  science  ?  If  they  had  continued  in  the  mother 
country,  it  is  more  than  probable,  that  persecution  would  have 
taught  them,  what  reason  and  revelation  had  failed  to  teach  them. 
They  would  have  reached  the  point,  at  which  the  Independents 
arrived  in  the  next  reign,  whose  true  glory  it  is,  that,  "  of  all  Chris- 
tian sects,  this  was  the  first,  which,  during  its  prosperity  as  well 
as  its  adversity,  always  adopted  the  principle  of  toleration."  * 

But  our  forefathers  acted  far  otherwise.  The  truth  of  history  com- 
pels us  to  admit,  that,  from  the  first  settlement  down  to  the  charter 
of  William  and  Mary,  in  1692,  in  proportion  as  they  gathered  inter- 
nal power,  they  were  less  and  less  disposed  to  share  it  with  any 
other  Christian  sect.  That  charter  contained  an  express  provision, 
that  there  should  be  "  a  liberty  of  conscience  allowed  in  the  worship 
of  God  to  all  Christians,  except  Papists.''''  Objectionable  as  this 
clause  would  have  been  under  other  circumstances,  the  recent 
attempts  of  James  the  Second  to  introduce  Popery,  and  the  dread 
which  they  entertained  of  being  themselves  the  subjects  of  political, 
as  well  as  religious  persecution,  reconciled  them  to  it,  and  they 
hailed  it  almost  as  another  magna  charta  of  liberty  .f  So  true  it 
is,  that  accident  or  interest  frequently  forces  men  to  the  adoption  of 
correct  principles,  when  a  sense  of  justice  has  totally  failed  to  effect 
it.  In  the  intermediate  period,  the  Quakers  and  Anabaptists,  and, 
in  short,  all  other  Dissenters  from  their  creed,  had  been  unrelentingly 
persecuted  by  fine,  imprisonment,  banishment,  and  sometimes  even 
by  death  itself.  Episcopalians,  too,  fell  under  their  special  dis- 
pleasure ;  and,  notwithstanding  every  effort  of  the  Crown,  by  threats 
and  remonstrance,  they  studiously  excluded  them  from  every  office, 
and  even  from  the  right  of  suffrage.  No  person  but  a  freeman  was 
permitted  to  vote  in  any  public  affairs,  or  to  hold  any  office  ;  and 
no  person  could  become  a  freeman  but  by  being  a  member  of  their 
own  church,  and  recommended  by  their  own  clergy.  J  In  truth 
the  clergy  possessed  a  power  and  influence  in  the  state,  as  great 
as  ever  was  exercised  under  any  church  establishment  whatsoever. 
There  was  not,  until  after  the  repeal  of  the  first  charter,  in  1676,  a 
single  Episcopal  society  in  the  whole  colony ;  *§>  and  even  the  cele- 

*  7  Hume's  Hist.  20.  1    1  Hutch.  Hist.  75,  and  note. 

I  3  Hutch.  Collect.  478,  181,  -',2(1.  note.         §  3  Hutch.  Hist.  430,  431. 


CENTENNIAL    DISCOURSE.  65 

bration  of  Christmas  was  punished  as  a  public  offence.*  In  this 
exclusive  policy  our  ancestors  obstinately  persevered,  against  every 
remonstrance  at  home  and  abroad.  When  Sir  Richard  Saltonstall 
wrote  to  them  his  admirable  letter,  which  pleads  with  such  a  catho- 
lic enthusiasm  for  toleration,  the  harsh  and  brief  reply  was,  "  God 
forbid  our  love  for  the  truth  should  be  grown  so  cold,  that  we 
should  tolerate  errors."  f  And  Cotton  himself,  "  whose  praise  is  in 
all  our  churches,"  the  man,  who  could,  with  a  noble  independence, 
address  himself  to  the  bishop  of  Lincoln  in  language  like  this  : 
"  However  much  I  do  highly  prize,  and  much  prefer  other  men's 
judgment,  and  learning,  and  wisdom,  and  piety  ;  yet  in  things  per- 
taining to  God  and  his  worship,  still  I  must  (as  I  ought)  live  by 
my  own  faith,  not  theirs" ;  such  a  man,  I  say,  could  meanly  stoop, 
in  the  defence  of  persecution,  to  arguments  not  unworthy  of  the 
worst  ages  of  bigotry.  J  They  went  farther,  imitating  in  this 
respect  the  famous  act  of  uniformity  of  Elizabeth,  and  compelled 
an  attendance  upon  their  own  mode  of  worship  under  a  penalty. 
Yes,  the  very  men  did  this,  who  thought  that  paying  one  shilling  for 
not  coming  to  prayers  in  England  was  an  unsupportable  tyranny. <§> 
Yes,  the  very  men,  who  asked  from  Charles  the  Second,  after  his 
restoration,  liberty  of  conscience  and  worship  for  themselves,  were 
deaf,  and  dumb,  and  blind,  when  it  was  demanded  by  his  commis- 
sioners for  Episcopalians  and  others.  They  silently  evaded  the 
claim,  or  resolutely  refused  it,  as  the  temper  of  the  times  enabled 
them  to  act. || 

The  very  efforts,  made  in  the  colony  to  establish  this  uniformity 
of  faith,  afford  striking  proofs  of  the  utter  hopelessness,  as  well  as 
injustice  of  such  attempts.  Within  ten  years  after  their  first  land- 
ing, the  whole  colony  was  thrown  into  confusion  by  religious  dissen- 
sions, by  controversies  about  faith,  and  about  forms  of  church 
government ;  about  the  covenant  of  grace,  and  the  covenant 
of  works  ;  about  liberty  of  conscience,  and  exclusiveness  of  wor- 
ship ;  about  doctrines  so  mysterious  and  subtle,  as  seem  past  all 
human  comprehension,  and  customs  so  trifling  and  vain,  as  seem 
beyond   the   reach  of  ecclesiastical  censure.      Who  could  imag- 

*  3  Hutch.  Collect.  419,  482;  Colony  and  Province  Laws,  edit.  1814,  p.  119, 
ch.  50. 

t  3  Hutch.  Collect.  401,  402.  J  Ibid.  403. 

§  Ibid.  418,  419,  422;  1  Hutch.  Hist.  75. 

||  3  Hutch.  Collect.  188,  191,  192,  193,  194,  418,  419,  422 ;  8  Hist.  Collect,  (sec- 
ond series)  p.  76,  78;  1  Hutch.  Hist.  Appendix,  537;  3  Hutch.  Collect.  478,  482, 
484,  519,  520. 


66  LITERARY    DISCOURSES. 

ine  that  the  reveries  of  Mrs.  Hutchinson,  and  the  question, 
whether  ladies  should  wear  veils,  and  the  legality  of  bearing  the 
cross  in  a  military  standard,  should  have  shaken  the  colony  to 
its  foundations  ?  So  thickly  sown  were  the  seeds  of  spiritual 
discord,  that  more  than  fourscore  opinions  were  pronounced  here- 
sies, by  an  ecclesiastical  Synod  convened  in  1637.*  Yet  were  the 
difficulties  far  from  being  removed,  although  fines  and  imprisonment 
and  banishment  followed  in  the  train  of  the  excommunications  of 
the  Church.  The  struggle  for  toleration  wras  still  maintained  ;  the 
discontent  with  the  laws,  which  confined  political  privileges  to 
church  members,  constantly  increased  ;  and  diversities  of  faith  at 
last  grew  up,  so  numerous  and  so  formidable,  that  persecution 
became  less  frequent,  because  it  was  less  safe.  The  single  fact, 
that,  under  this  exclusive  system,  not  more  than  one  sixth  of  the 
qualified  inhabitants  were  freemen  in  1676,  affords  an  ample  com- 
mentary upon  its  injustice  and  folly.  Five  sixths  of  the  colony 
were  disfranchised  by  the  influence  of  the  ecclesiastical  power.f 

The  fundamental  error  of  our  ancestors,  an  error  which  began 
with  the  very  settlement  of  the  colony,  was  a  doctrine,  which  has 
since  been  happily  exploded  ;  I  mean  the  necessity  of  a  union 
between  Church  and  state.  To  this  they  clung,  as  the  ark  of  their 
safety.  They  thought  it  the  only  sure  way  of  founding  a  Christian 
commonwealth.  They  maintained,  that  "  church  government  and 
civil  government  may  very  well  stand  together ;  it  being  the  duty  of 
the  magistrate  to  take  care  of  matters  of  religion,  and  to  improve  his 
civil  authority  for  observing  the  duties  commanded  by  it."  %  They 
not  only  tolerated  the  civil  power  in  the  suppression  of  heresy,  but 
they  demanded  and  enjoined  it.  They  preached  it  in  the  pulpit 
and  the  synod.  It  was  in  their  closet  prayers,  and  in  their  public 
legislation.  The  arm  of  the  civil  government  was  constantly 
employed  in  support  of  the  denunciations  of  the  Church  ;  and, 
without  its  forms,  the  Inquisition  existed  in  substance,  with  a  full 
share  of  its  terrors  and  its  violence.  There  was,  indeed,  far  more 
caution  in  shedding  human  blood  ;  but  there  was  scarcely  less 
indulgence  for  human  error.  For  such  proceedings  there  was  not 
the  poor  apology,  which  has  been  sometimes  suggested,  that  every 
religion,  which  is  persecuted,  becomes  itself  persecuting,  because 
it  attacks  the  religion  which  persecuted  it,  not  as  a  religion,  but  as 
a  tyranny.  ^     Our  ancestors  could  not  frame  such  an  apology  for 

*  1  Hutch.  Hist.  37,  55,  67,  73,  75,  430.  t  3  Hutch.  Collect.  484. 

I   Hutch.  Hist.  434.  §   Montesquieu's  Spirit  of  Laws,  book  25,  ch.  9. 


CENTENNIAL    DISCOURSE.  67 

themselves ;  for  no  ecclesiastical  tyranny  attempted  to  usurp 
authority  over  them  within  the  colony.  It  had  a  deeper  origin,  in 
that  wretched  doctrine  of  the  union  of  Church  and  state,  by  which 
Christianity  has  been  made  the  minister  of  almost  every  wrong  in 
the  catalogue  of  crimes.  It  has  been  said,  with  as  much  truth  as 
force,  by  one  of  the  most  eloquent  of  modern  divines,  that  "  The 
boasted  alliance  between  church  and  state,  on  which  so  many  enco- 
miums have  been  lavished,  seems  to  have  been  little  more  than 
a  compact  between  the  priest  and  the  magistrate  to  betray  the 
liberties  of  mankind,  both  civil  and  religious."  * 

To  the  honor  of  New  England  be  it  said,  that  if  here  persecu- 
tion obtained  an  early  triumph,  here  also,  for  the  first  time  since  the 
Reformation,  was  simultaneously  proclaimed  the  doctrine  of  liberty 
of  conscience,  —  a  doctrine,  which,  I  trust,  will,  by  the  blessing  of 
God,  be  maintained  by  us  and  our  posterity  at  all  hazards,  and 
against  all  encroachments.  Here,  on  this  very  spot,  in  Naumkeag, 
in  this  "bosom  of  consolation,"!  it  was  proclaimed  by  Roger 
Williams  in  1635  ;  and  for  this,  among  other  grave  offences,  he  was 
sentenced  to  banishment.  He  fled  to  Rhode  Island  ;  and  there, 
in  the  code  of  laws  for  the  colony  planted  by  his  energy  and 
sagacity,  we  read  for  the  first  time,  since  Christianity  ascended  the 
throne  of  the  Caesars,  the  declaration,  that  "  conscience  should  be 
free,  and  men  should  not  be  punished  for  worshipping  God  in  the 
way  they  were  persuaded  he  required," —  a  declaration,  which,  to 
the  honor  of  Rhode  Island,  she  has  never  departed  from,  —  a  dec- 
laration, which  puts  to  shame  many  a  realm  of  wider  domains  and 
loftier  pretensions.  It  still  shines  among  her  laws,  with  an  argument 
in  its  support  in  the  shape  of  a  preamble,  which  has  rarely  been 
surpassed  in  power  of  thought  or  felicity  of  expression.  J  Massa- 
chusetts may  blush,  that  the  Catholic  colony  of  Lord  Baltimore, 
and  the  Quaker,  the  blameless  Quaker  colony  of  Penn,  were  origi- 
nally founded  on  the  same  generous  principles  of  Christian  right, 
long  before  she  felt  or  acknowledged  them.<§> 

*  Robert  Hall  ;  "  Christianity  Consistent  with  a  Love  of  Freedom." 

t  In  "  The  Planter's  Plea,"  published  in  London  in  1630,  the  writer  says  that 
Nahum  Keike  is  perfect  Hebrew,  and  by  interpretation  means  "  The  bosom  of 
consolation." 

t  It  is  almost  in  totidem  verbis  with  the  act  of  Virginia  of  1785,  which  has  been 
attributed  to  Mr.  Madison.  To  which  state  the  merit  of  the  original  draft  belongs, 
I  am  unable  to  say,  as  I  have  not  the  means  of  tracing  it  in  Rhode  Island  acts 
earlier  than  in  the  Digest  of  1798. 

§   1  Pitkin's  Hist.  56,  67;  Chalmers,  p.  218;  2  Proud's  Hist.  Append. 


68  LITERARY    DISCOURSES. 

While,  then,  we  joyfully  celebrate  this  anniversary,  let  us  re- 
member, that  our  forefathers  had  their  faults,  as  well  as  virtues  ; 
that  their  example  is  not  always  a  safe  pattern  for  our  imitation, 
but  sometimes  a  beacon  of  solemn  warning.  Let  us  do,  not  what 
they  did,  but  what,  with  our  lights  and  advantages,  they  would  have 
done,  must  have  done,  from  the  love  of  country,  and  the  love  of 
truth.  Is  there  any  one,  who  would  now,  for  a  moment,  justify  the 
exclusion  of  every  person  from  political  rights  and  privileges,  who 
is  not  a  Congregationalist  of  the  straitest  sect  in  doctrine  and  disci- 
pline ?  Is  there  any  one,  who  would  exclude  the  Episcopalian, 
the  Baptist,  the  Methodist,  the  Quaker,  or  the  Universalist,  not 
merely  from  power  and  Christian  fellowship,  but  from  breathing  the 
same  air,  and  enjoying  the  same  sunshine,  and  reaping  the  same 
harvest,  because  he  walks  not  in  the  same  faith,  and  kneels  not  at 
the  same  altar,  with  himself?  Is  there  any  one,  who  would  bring 
back  the  by-gone  penalties,  and  goad  on  tender  consciences  to 
hypocrisy  or  self-destruction  ?  Is  there  any  one,  who  would  light 
the  fagot  to  burn  the  innocent  ?  who  would  stain  the  temples  of 
God  with  the  blood  of  martyrdom  ?  who  would  cut  off  all  the 
charities  of  human  life,  and,  in  a  religious  warfare,  arm  the  father 
against  the  son,  the  mother  against  the  daughter,  the  wife  against 
the  husband  ?  who  would  bind  all  posterity  in  the  fetters  of  his  own 
creed,  and  shipwreck  their  consciences  ?  If  any  such  there  be, 
whatever  badge  they  may  wear,  they  are  enemies  to  us  and  our 
institutions.  They  would  sap  the  foundations  of  our  civil,  as  well 
as  religious  liberties.  They  would  betray  us  into  worse  than 
Egyptian  bondage.  Of  the  doctrines  of  such  men,  if  any  such 
there  be,  I  would  say,  with  the  earnestness  of  the  apostolical  exhorta- 
tion, "  Touch  not,  taste  not,  handle  not."  If  ever  there  could  be 
a  case,  in  which  intolerance  would  rise  almost  into  the  dignity  of  a 
virtue,  it  would  be,  when  its  object  was  to  put  down  intolerance. 
No  —  let  us  cling  with  a  holy  zeal  to  the  Bible,  and  the  Bible  only, 
as  the  religion  of  Protestants.  Let  us  proclaim,  with  Milton,  that 
"  Neither  traditions,  nor  councils,  nor  canons  of  any  visible  Church, 
much  less  edicts  of  any  civil  magistrate,  or  civil  session,  but  the 
Scripture  only,  can  be  the  final  judge  or  rule  in  matters  of  religion, 
and  that  only  in  the  conscience  of  every  Christian  to  himself." 
Let  us  inscribe  on  the  walls  of  our  dwelling-houses,  in  our  temples, 
in  our  halls  of  legislation,  in  our  courts  of  justice,  the  admirable 
declaration  of  Queen  Mary,  the  consort  of  William  the  Third, — 
than  which  a  nobler  precept  of  wisdom  never  fell  from  uninspired 


CENTENNIAL    DISCOURSE.  69 

lips — "  It  is  not  in  the  power  of  men  to  believe  what  they  please  ; 
and  therefore  they  should  not  be  forced  in  matters  of  religion  con- 
trary to  their  persuasions  and  their  consciences."  # 

I  pass,  with  unmixed  pleasure,  to  other  and  more  grateful  topics, 
where  approbation  need  not  be  slow,  or  praise  parsimonious.  If,  in 
laying  the  foundations  of  this  Christian  commonwealth,  our  fore- 
fathers were  governed,  in  respect  to  religion,  by  a  spirit  unworthy  of 
Protestantism,  it  was  far  otherwise  in  respect  to  their  civil  institu- 
tions. Here,  a  wise  forecast  and  sound  policy  directed  all  their 
operations  ;  so  wise  and  so  sound,  that  the  lapse  of  two  hundred 
years  has  left  unchanged  the  body  of  their  legislation,  and,  in  a  gen- 
eral sense,  added  little  to  their  securities  for  public  or  private  rights. 
There  is  no  reason  to  suppose,  that  they  were  opposed  to  mon- 
archy, as  a  suitable  form  of  government  for  the  mother  country,  or 
that  opposition  to  the  civil  establishments  mingled  in  the  slightest 
degree  with  the  motives  of  their  emigration,  f  There  is  just  as 
little  reason  to  suppose,  that  they  desired  or  would  have  acquiesced 
in  the  establishment  of  a  colonial  monarchy  or  aristocracy.  On 
the  contrary,  we  know,  that  they  refused  to  confer  the  magistracy 
for  life  ;  and  that  they  repelled  every  notion  of  an  hereditary 
nobility,  in  their  celebrated  answer  to  the  propositions  of  Lord  Say 
and  Seale.J  This  attachment  to  the  form  of  government  of  the 
mother  country  was  not  only  sincere,  but  continued  down  to  the 
Revolution.  Their  descendants  took  many  opportunities  to  evince 
it ;  and  some  of  the  most  powerful  appeals  made  by  the  patriots  of 
the  Revolution  to  the  British  Crown  are  filled  with  eloquent  pro- 
fessions of  loyalty.  The  formation  of  a  Republic  was  the  neces- 
sary result  of  the  final  separation  from  England.  The  controversy 
was  then  narrowed  down  to  the  consideration  of  what  form  of  gov- 
ernment they  might  properly  adopt.  All  their  habits,  principles, 
and  institutions  prohibited  the  existence  of  a  real  or  titular  peerage. 
They  had  no  materials  for  a  king.  They  were,  as  they  had  been 
from  the  beginning,  essentially  republicans.  They  followed  the 
lead  of  their  existing  institutions ;  and  the  most  striking  change 
introduced  by  them  was  the  choice  of  a  governor  by  themselves,  as 
a  substitute  for  the  like  choice  by  the  Crown. 

Their  connexion  with  and  dependence  upon  the  mother  country 
grew  up  from  their  national  allegiance,  and  was  confirmed  by  the 
sense  of  their  own  weakness  and  the   desire  of  protection.     In 

*  9  Hist.  Collect.  251.     t  3  Hutch.  Collect.  326.    i  1  Hutch.  Hist.  490,  493,  494. 


70  LITERARY    DISCOURSES. 

return  for  this  protection,  they  were  ready  to  admit  a  sovereign  right 
in  Parliament  to  regulate,  to  some,  though  to  an  undefined  extent, 
their  foreign  intercourse,  and  in  the  Crown  to  supervise  their  colonial 
legislation.  But  they  never  did  admit  the  right  of  Parliament  or 
the  Crown  to  legislate  generally  for  them,  or  to  interfere  with  their 
domestic  polity.  ■  On  the  contrary,  from  the  first,  they  resisted  it, 
as  an  encroachment  upon  their  liberties.  This  was  more  emphati- 
cally true  of  Massachusetts  than  of  any  other  of  the  Colonies. 
The  commissioners  of  Charles  the  Second,  in  16G5,  reported,  that 
"  she  was  the  last  and  hardliest  persuaded  to  use  his  majesty's  name 
in  the  forms  of  justice  ;" — that  her  inhabitants  "  proclaimed  by  sound 
of  trumpet,  that  the  General  Court  was  the  supremest  judicatory 
in  all  that  province  ;  "  "  that  the  commissioners'  pretending  to  hear 
appeals  was  a  breach  of  their  privileges  ;  "  "  and  that  they  should 
not  permit  it."  *  In  short,  the  commissioners  well  described  "  their 
way  of  government,  as  commonwealth  like" j"  Even  in  relation 
to  foreign  commerce  their  strong  sense  of  independence  was  illus- 
trated by  the  complaint,  that  "  no  notice  wTas  taken  of  the  act  of 
navigation,  plantation,  or  any  other  laws  made  in  England  for  the 
regulation  of  trade  ;  all  nations  having  free  liberty  to  come  into 
their  ports,  and  vend  their  commodities  without  any  restraint."  % 
These  acts  of  navigation  and  trade  were  never  recognised  as  in 
force  in  the  colony,  until  their  own  legislature  required  their  obser- 
vance. <§>  So  strenuous  were  our  ancestors,  even  at  this  early  period, 
in  maintaining  the  doctrine,  that  Parliament  could  not  bind  them, 
because  they  were  not  represented  there.  So  jealous  were  they  to 
guard  against  every  usurpation  of  the  Crown.  He,  indeed,  must 
have  read  our  annals  with  a  very  careless  eye,  who  does  not  per- 
ceive, at  every  turn,  a  constant  struggle  for  substantial  independence. 
The  basis  of  their  institutions  was,  from  the  first  settlement,  repub- 
lican. The  people  were  the  admitted  source  of  all  power.  They 
chose  the  magistrates  and  executive.  They  established  a  represen- 
tative government ;  they  created  a  colonial  legislature,  whose  power 
to  enact  laws  was,  until  the  overthrow  of  the  first  charter,  deemed 
for  most  purposes  absolute  and  supreme.  Their  earliest  legislation 
recognised  the  great  rights  secured  by  the  Magna  Charta  of  Eng- 
land :  the  trial  by  jury ;  the  free  administration  of  justice  ;  the 
equality  of  freemen  ;  the  abolition  of  all  slavish  and  feudal  tenures ; 

*  3  Hutch.  Collect.  417,  418.  I  Ibid.  422. 

\  Randolph's  Letter  in  167(5  ;  3  Hutch.  Collect.  496. 
$  1  Hutch.  Hist.  322;  3  Hutch.  Collect.  521. 


CENTENNIAL    DISCOURSE.  71 

and,  above  all,  the  distribution  of  intestate  estates  among  all  the 
descendants  of  the  deceased.  This  was  indeed  a  signal  triumph 
over  the  prejudices  in  favor  of  primogeniture.  It  constituted  a 
fundamental  principle  in  their  policy  ;  and,  by  its  silent,  but  irresisti- 
ble influence,  prevented  the  undue  accumulation  of  estates  in  a  few 
hands,  so  that  the  introduction  of  a  colonial  nobility  became  abso- 
lutely impracticable.  Henceforth,  the  partible  nature  of  estates 
was  so  fixed  in  public  opinion,  that  it  broke  down  every  attempt  to 
perpetuate  entails ;  and  left  the  mass  of  our  landed  interests,  as  we 
now  find  them,  in  the  possession  of  the  yeomanry  in  fee  simple. 
While  this  great  law  of  descents  exists,  it  will  for  ever  prevent  the 
establishment  of  any  arbitrary  power.  The  government,  that  once 
admits  it  into  its  code,  may  remain  in  form  a  monarchy,  or  an  aris- 
tocracy ;  but  it  will  follow  the  impulses  of  public  opinion,  and  find 
its  surest  protection  in  the  advancement  of  popular  principles. 

Thus  broad,  thus  elevated,  was  the  early  legislation  of  our  fore- 
fathers. If  we  except  from  it  that  portion,  which  was  tinged  by 
the  bigotry  and  superstition  of  the  times,  we  shall  find  it  singular 
for  its  wisdom,  humanity,  and  public  spirit ;  and  admirably  adapted 
to  the  wants  of  a  free,  simple,  and  intelligent  people. 

Among  the  most  striking  acts  of  their  legislation  are  those,  which 
respect  the  cause  of  learning  and  education.  Within  ten  short 
years  after  their  first  settlement,  they  founded  the  University  at 
Cambridge,  and  endowed  it  with  the  sum  of  four  hundred  pounds ; 
a  sum,  which,  considering  their  means  and  their  wants,  was  a  most 
generous  benefaction.  Perhaps  no  language  could  more  signifi- 
cantly express  the  dignity  of  their  design,  than  their  own  words. 
"  After  God  had  carried  us  safe  to  New-England,"  said  they,  "  and 
we  had  builded  our  houses,  provided  necessaries  for  our  livelihood, 
reared  convenient  places  for  God's  worship,  and  settled  the  civil 
government;  one  of  the  next  things  we  longed  for,  and  looked 
after,  was  to  advance  learning  and  perpetuate  it  to  posterity,  dread- 
ing to  leave  an  illiterate  ministry  to  the  churches,  when  our  present 
ministers  shall  lie  in  the  dust."  *  They  were  not  disappointed  in 
their  hopes.  By  the  blessing  of  Providence,  this  little  College, 
planted  by  their  hands,  and  nursed  by  their  care,  has  flourished. 
Already  she  counts  nearly  six  thousand  in  her  matriculations.  She 
still  stands  erect,  in  the  midst  of  her  offspring,  clothed  with  her 
ancient  glory  and  matron  dignity,  and  lovelier  by  her  age.     Our 

*  1  Hist.  Collect.  240. 


72  LITERARY    DISCOURSES. 

hearts  still  yearn  towards  her ;  our  thoughts  still  kindle  at  her  praise  ; 
our  prayers  still  rise  for  her  prosperity.  We  may  smile  at  the  early 
charge  made  hy  the  royal  commissioners,  that  "  it  may  he  feared 
this  College  may  afford  us  many  schismatics  to  the  Church."  * 
But  we  proudly  proclaim  their  reluctant  confession,  that  by  her 
means  there  was  "  a  scholar  to  their  minister  in  every  town  or  vil- 
lage "  in  Massachusetts-! 

But  the  truest  glory  of  our  forefathers  is  in  that  system  of  public 
instruction,  which  they  instituted  by  law,  and  to  which  New  Eng- 
land owes  more  of  its  character,  its  distinction,  and  its  prosperity, 
than  to  all  other  causes.  If  this  system  be  not  altogether  without 
example  in  the  history  of  other  nations  (as  I  suspect  it  to  be,  in  its 
structure  and  extent),  it  is,  considering  the  age  and  means  of  the 
projectors,  an  extraordinary  instance  of  wise  legislation,  and  worthy 
of  the  most  profound  statesmen  of  any  times.  At  the  distance  of 
centuries  it  stands  alone  and  unrivalled.  Europe  has  not  ventured 
as  yet  to  copy  its  outlines  ;  nor  could  they  be  copied  in  a  despotism, 
without  undermining  its  foundations.  England  herself,  where  let- 
ters and  learning  have  so  long  held  the  highest  rank,  is  but  just 
beginning  to  think  seriously  of  a  system  of  national  instruction  ;  and 
her  statesmen  are  now  gathering  admiration  at  home  from  schemes 
of  public  education,  far,  very  far  short  of  what  her  own  poor,  feeble, 
neglected  colony  established,  at  the  starting  point  of  its  political 
existence.  Yes,  it  was  in  this  system  of  public  instruction,  that  our 
fathers  laid  the  foundation  for  the  perpetuity  of  our  institutions,  and 
for  that  growth  of  sound  morals,  industry,  and  public  spirit,  which 
has  never  yet  been  wanting  in  New  England,  and,  we  may  fondly 
hope,  will  for  ever  remain  her  appropriate  praise.  Yes,  in  the 
year  1647,  they  ordered  every  township  of  fifty  householders  to 
maintain  a  public  school  at  public  expense  ;  and  every  township  of 
one  hundred  householders  to  maintain  in  like  manner  a  grammar 
school,  to  instruct  youth,  and  fit  them  for  the  University,  "  to  the 
end,"  say  they,  in  this  memorable  law,  "  to  the  end,  that  learning 
may  not  be  buried  in  the  graves  of  our  forefathers,  in  Church  and 
commonwealth."  And  this  was  done  by  them,  when  they  had 
just  made  their  first  lodgment  in  the  wilderness ;  when  they  had 
scarcely  found  leisure  to  build,  I  do  not  say,  fair  dwellings,  but 
humble  cottages  for  their  own  shelter  and  safety.  When  they 
were  poor  and  unprotected,  persecuted   and  in  peril  —  they  could 

»3  Hutch.  Collect.  421.  I  Ibid.  413. 


CENTENNIAL    DISCOURSE.  73 

then  look  forward  with  a  noble  disregard  of  present  enjoyments,  and 
forgetting  themselves,  provide  the  bread  of  life  for  their  posterity. 
This  system  has  never  been  broken  in  upon  ;  it  still  stands,  in  its 
substance,  on  the  pages  of  our  statute  book,  an  enduring  record  of 
wisdom  and  patriotism.  Under  its  blessed  influence  our  youth 
have  grown  up.  They  have  received  early  instruction  in  their 
rights  and  liberties,  and,  as  the  law  itself  requires,  "  not  only  in 
sound  literature,  but  in  sound  doctrine."  It  is  here,  that  industry 
has  learned  the  value  of  its  own  labors  ;  that  genius  has  triumphed 
over  the  discouragements  of  poverty  ;  that  skill  has  given  polish,  as 
well  as  strength,  to  talent ;  tbat  a  lofty  spirit  of  independence  has 
been  nourished  and  sustained  ;  that  the  first  great  lesson  of  human 
improvement  has  been  taught,  that  knowledge  is  power ;  and  the 
last  great  lesson  of  human  experience  felt,  that  without  virtue  there 
is  neither  happiness  nor  safety. 

I  know  not  what  more  munificent  donation  any  government  can 
bestow,  than  by  providing  instruction  at  the  public  expense,  not  as 
a  scheme  of  charity,  but  of  municipal  policy.  If  a  private  person 
deserves  the  applause  of  all  good  men,  who  founds  a  single  hospital 
or  college,  how  much  more  are  they  entitled  to  the  appellation  of 
public  benefactors,  who,  by  the  side  of  every  church  in  every  village, 
plant  a  school  of  letters.  Other  monuments  of  the  art  and  genius 
of  man  may  perish  ;  but  these,  from  their  very  nature,  seem,  as  far 
as  human  foresight  can  go,  absolutely  immortal.  The  triumphal 
arches  of  other  days  have  fallen  ;  the  sculptured  columns  have 
crumbled  into  dust ;  the  temples  of  taste  and  religion  have  sunk 
into  decay  ;  the  pyramids  themselves  seem  but  mighty  sepulchres, 
hastening  to  the  same  oblivion,  to  which  the  dead  they  cover  have 
long  since  passed.  But  here,  every  successive  generation  becomes 
a  living  memorial  of  our  public  schools,  and  a  living  example  of 
their  excellence.  Never,  never  may  this  glorious  institution  be 
abandoned  or  betrayed  by  the  weakness  of  its  friends,  or  the  power 
of  its  adversaries.  It  can  scarcely  be  abandoned  or  betrayed, 
while  New  England  remains  free,  and  her  representatives  are  true 
to  their  trust.  It  must  for  ever  count  in  its  defence  a  majority  of 
all  those,  who  ought  to  influence  public  affairs  by  their  virtues  or 
their  talents  ;  for  it  must  be,  that  here  they  first  felt  the  divinity  of 
knowledge  stir  within  them.  What  consolation  can  be  higher,  what 
reflection  prouder,  than  the  thought,  that  in  weal  and  in  woe  our 
children  are  under  the  public  guardianship,  and  may  here  gather 
the  fruits  of  that  learning,  which  ripens  for  eternity  ? 
10 


74  LITERARY    DISCOURSES. 

There  is  another  topic  connected  with  the  settlement  of  this 
country,  which  may  not  be  passed  over  upon  this  occasion.  At 
the  very  threshold  of  the  enterprise,  a  nice  question,  both  in  morals 
and  public  law,  must  have  presented  itself  to  the  consideration  of 
conscientious  minds.  How  far  was  it  lawful  to  people  this  western 
world,  and  deprive  the  Indians  of  that  exclusive  sovereignty  over 
the  soil,  which  they  had  exercised  for  ages  beyond  the  reach  of 
human  tradition  ?  Men  of  deep  reflection,  and  especially  men 
who  felt  a  serious,  religious  accountability  for  their  conduct,  could 
not  be  presumed  to  pass  over  such  a  subject  without  weighing  it 
with  scrupulous  delicacy.  It  did  not  escape  the  attention  of  our 
forefathers.  They  met  it,  and  discussed  it  with  a  manly  freedom. 
They  sought  neither  to  disguise  their  own  opinions,  nor  ot  conceal 
the  real  difficulties  of  the  inquiry. 

In  ascending  to  the  great  principles,  upon  which  all  human 
society  rests,  it  must  be  admitted,  that  there  are  some,  which  are 
of  eternal  obligation,  and  arise  from  our  relations  to  each  other, 
and  our  common  dependence  upon  our  Creator.  Among  these 
are  the  duty  to  do  justice,  to  love  mercy,  and  to  walk  humbly 
before  God.  There  are  others  again,  which  are  merely  founded  in 
general  convenience,  and  presuppose  some  regulations  of  society, 
or  conventional  law.  The  rights  belonging  to  this  latter  class  are 
coextensive  only  with  the  nations,  which  recognise  them  ;  and,  in  a 
general  sense,  cannot  be  deemed  obligatory  upon  the  rest  of  the 
world.  The  plain  reason  is,  that  no  portion  of  mankind  has  any 
authority,  delegated  to  it  by  the  Creator,  to  legislate  for,  or  bind,  all 
the  rest.  The  very  equality  of  original  rights,  which  every  argu- 
ment presupposes,  excludes  the  notion  of  any  authority  to  control 
those  rights,  unless  it  is  derived  by  grant  or  surrender,  so  as  to  bind 
others  in  conscience  and  abstract  justice. 

We  are  told  in  the  Scriptures,  that  in  the  beginning  God  gave 
man  dominion  over  the  earth,  and  commanded  him  to  replenish  and 
subdue  it ;  and  this  has  been  justly  said  to  be  the  true  and  solid 
foundation  of  man's  dominion  over  it.*  But  this  principle  does 
not  lead  to  the  conclusion,  that  any  particular  person  may  acquire 
to  himself  a  permanent  and  exclusive  interest  in  the  soil ;  much 
less,  that  any  single  nation  may  appropriate  to  itself  as  much  of  the 
surface  as  it  shall  choose,  and  thus  narrow  down  the  common 
inheritance,  and  exclude   all  others  from  any  participation   in   its 


*  2  Bl.  Com.  2. 


CENTENNIAL    DISCOURSE.  75 

products  for  the  supply  of  their  own  wants.  If  any  right  can  be 
deduced  from  this  general  grant  of  dominion  to  man,  it  is  of  a  far 
more  limited  nature  :  the  right  to  occupy  what  we  possess  during 
the  time  of  possession,  the  right  of  mere  present  enjoyment ;  which 
seems  to  flow  as  much  from  the  consideration,  that  no  one  can  show 
a  better  right  to  displace  us,  as  from  the  consideration,  that  it  affords 
the  only  means  of  any  enjoyment.  But  where  shall  we  find,  inde- 
pendently of  maxims  derived  from  society,  the  right  of  any  nation 
to  exclude  others  from  cultivating  the  soil,  which  it  does  not  itself 
choose  to  cultivate,  but  which  may  be  indispensable  to  supply  the 
necessities  of  others  ?  Where  is  the  principle,  which  withdraws 
from  the  common  inheritance,  and  gives  to  a  few,  what  the  bounty 
of  God  has  provided  for  all  ?  The  truth  is  (though  it  is  a  truth 
rarely  brought  into  discussion  among  civilized  nations),  that  exclu- 
sive sovereignty  or  ownership  of  the  soil  is  a  derivative  right, 
resting  upon  municipal  regulations  and  the  public  law  of  society ; 
and  obtaining  its  whole  validity  from  the  recognitions  of  the  com- 
munities, which  it  binds,  and  the  arm  of  power,  which  encircles 
and  protects  it.  It  is  a  right  founded  upon  the  soundest  policy  ; 
and  has  conduced,  more  than  almost  any  human  achievement,  to 
create  the  virtues  which  strengthen,  and  the  refinements  which 
grace  civilized  life.  But  if  general  consent  should  abolish  it  to-mor- 
row, it  would  be  difficult  to  say,  that  a  return  to  the  patriarchal  or 
pastoral  state  of  nations,  and  the  community  of  property,  would  be 
any  departure  from  natural  right. 

When  this  continent  was  first  discovered,  it  became  an  object  of 
cupidity  to  the  ambition  of  many  of  the  nations  of  Europe.  Each 
eagerly  sought  to  appropriate  it  to  itself.  But  it  was  obvious,  that, 
in  the  mutual  struggle  for  power,  contests  of  the  most  sanguinary 
nature  would  soon  intervene,  if  some  general  principle  were  not 
adopted,  by  the  consent  of  all,  for  the  government  of  all.  The 
most  flexible  and  convenient  principle,  which  occurred,  was, 
that  the  first  discovery  should  confer  upon  the  nation  of  the 
discoverer  an  exclusive  right  to  the  soil,  for  the  purposes  of  sove- 
reignty and  settlement.  This  principle  was  accordingly  adopted, 
and  became  a  fundamental  doctrine  in  the  code  of  legal  ethics,  by 
which  the  European  governments  regulated  their  acquisitions.  No 
European  subject  was  permitted  to  interfere  with  it ;  and  the  posses- 
sion acquired  under  it  was  deemed  absolute  and  unquestionable. 
In  respect  to  desert  places,  the  principle,  as  one  of  peace  and 
equality  of  benefits,  is  not  perhaps  obnoxious  to  censure.     But  in 


76  LITERARY    DISCOURSES. 

respect  to  countries  already  inhabited,  neither  its  general  justice, 
nor  its  conformity  to  public  law,  entitles  it  to  commendation.  If, 
abstractly  considered,  mere  discovery  could  confer  any  title,  the 
natives  already  possessed  it  by  such  prior  discovery.  If  this  were 
put  aside,  and  mere  possession  could  confer  sovereignty,  they  had 
that  possession,  and  were  entitled  to  the  sovereignty.  In  short,  it 
is  clear,  that,  upon  the  principles  generally  recognised  by  European 
nations,  as  between  themselves,  the  natives  could  not  be  rightfully 
displaced.  And  if  they  were  not  entitled  to  the  benefit  of  those 
principles,  they  might  still  stand  upon  the  eternal  laws  of  natural 
justice,  and  maintain  their  right  to  share  in  the  common  inheritance. 
Such  a  conclusion  could  not  escape  the  sagacity  of  the  statesmen 
and  princes  of  the  old  world  ;  but  it  was  quite  too  refined  to  satisfy 
their  ambition  and  lust  of  dominion.  It  was  easy  to  found  an 
argument  for  the  expulsion  of  the  natives  upon  their  infidelity  and 
barbarism,  which  allowed  them  to  be  treated  as  the  enemies  of  God. 
It  was  still  more  plausible  to  hold  out  the  prospect  of  converting 
them  to  the  Christian  faith,  and  thus  to  secure  a  new  triumph  to 
civilization  and  the  cross.  If  their  territory  was  invaded,  and  their 
governments  were  overthrown,  if  they  were  compelled  to  yield  to 
the  superior  genius  and  power  of  Europe,  they  would  still  receive 
an  ample  compensation,  in  their  admission  into  the  bosom  of  Euro- 
pean society,  with  its  privileges  and  improvements.  Such  were 
some  of  the  suggestions,  by  which  royal  ambition  sought  to  dis- 
guise its  real  objects,  and  to  reconcile  to  religion  itself  the  spirit  of 
conquest.  It  is  but  justice,  however,  to  add,  that  there  was  no 
public  avowal,  that  the  natives  possessed  no  right  whatsoever. 
On  the  contrary,  it  was  conceded,  that  they  possessed  a  present 
right  of  occupancy  ;  temporary,  indeed,  and  limited  ;  which  might 
be  surrendered  to  the  discovering  nation,  and  in  the  mean  time  was 
entitled  to  respect. 

Our  forefathers  did  not  attempt  to  justify  their  own  emigration 
and  settlement,  upon  the  European  doctrine  of  the  right  of  dis- 
covery. Their  patent  from  the  Crown  contained  a  grant  of  this 
right ;  but  they  felt  that  there  was  a  more  general  question  behind. 
"  What  warrant  have  we  to  take  that  land,  which  is,  and  hath  been 
of  long  time,  possessed  by  others,  the  sons  of  Adam  ?  "  Their  an- 
swer is  memorable  for  its  clearness,  strength,  and  bold  assertion  of 
principles.  That  which  is  common  to  all,  say  they,  is  proper  to 
none.  This  savage  people  ruleth  over  many  lands  without  title  or 
property.     Why  may  not  Christians  have  liberty  to  go  and  dwell 


CENTENNIAL    DISCOURSE.  77 

amongst  them  in  their  waste  lands  ?  God  hath  given  to  the  sons  of 
men  a  two-fold  right  to  the  earth.  There  is  a  natural  right  and 
a  civil  right.  The  first  right  was  natural,  when  men  held  the  earth 
in  common.  When,  afterwards,  they  appropriated  some  parcels  of 
ground,  by  enclosing  and  peculiar  manurance,  this,  in  time,  got  them 
a  civil  right.  There  is  more  than  enough  land  for  us  and  them. 
God  hath  consumed  them  with  a  miraculous  plague,  whereby  the 
greater  part  of  the  country  is  left  void  of  inhabitants.  Besides,  we 
shall  come  in  with  the  good  leave  of  the  natives.*  Such  argu- 
ments were  certainly  not  unworthy  of  men  of  scrupulous  virtue. 
They  were  aided  by  higher  considerations,  by  the  desire  to  propa- 
gate Christianity  among  the  Indians  ;  a  desire,  which  is  breathed 
forth  in  their  confidential  papers,  in  their  domestic  letters,  in  their 
private  prayers,  and  in  their  public  devotions.  In  this  object  they 
were  not  only  sincere,  but  constant.  So  sincere  and  so  constant, 
that  one  of  the  grave  accusations  against  them  has  been,  that,  in 
their  religious  zeal,  they  compelled  the  Indians,  by  penalties,  to 
attend  public  worship,  and  allured  them,  by  presents,  to  abandon 
their  infidelity .f  In  truth,  the  propagation  of  Christianity  was  a 
leading  motive  with  many  of  the  early  promoters  of  the  settlement ; 
and  we  need  no  better  proof  of  it,  than  the  establishment  of  an 
Indian  school  at  Harvard  College,  to  teach  them  the  rudiments  of 
the  Christian  faith. 

Whatever,  then,  may  have  been  the  case  in  other  parts  of  the 
continent,  it  is  a  fact,  and  it  should  not  be  forgotten,  that  our  fore- 
fathers never  attempted  to  displace  the  Indians  by  force,  upon  any 
pretence  of  European  right.  They  occupied  and  cultivated  what 
was  obtained  by  grant,  or  was  found  vacant.  They  constantly 
respected  the  Indians  in  their  settlements  and  claims  of  soil.  They 
protected  them  from  their  enemies,  when  they  sought  refuge  among 
them.  They  stimulated  no  wars  for  their  extermination.  Dur- 
ing the  space  of  fifty  years,  but  a  single  case  of  serious  warfare 
occurred  ;  and,  though  we  cannot  but  lament  the  cruelties  then 
perpetrated,  there  is  no  pretence,  that  they  were  the  aggressors  in 
the  contest.  Whatever  complaints,  therefore,  may  be  justly  urged 
by  philosophy,  or  humanity,  or  religion,  in  our  day,  respecting  the 
wrongs  and  injuries  of  the  Indians,  they  scarcely  touch  the  Pil- 
grims of  New  England.  Their  hands  were  not  imbrued  in  inno- 
cent blood.  Their  hearts  were  not  heavy  with  crimes  and  oppres- 
sions  engendered  by    avarice.      If  they  were  not  wholly  without 

*  3  Hutch.  Collect.  30,  31.  t  3  Hutch.  Collect.  28,  32,  420,  490. 


78  LITERARY    DISCOURSES. 

blame,  they  were  not  deep  in  guilt.  They  might  mistake  the  time, 
or  the  mode,  of  christianizing  and  civilizing  the  Indians;  but  they 
did  not  seek  pretences  to  extirpate  them.  Private  hostilities  and 
butcheries  there  might  be  ;  but  they  were  not  encouraged  or  justi- 
fied by  the  government.  It  is  not,  then,  a  just  reproach,  some- 
times cast  on  their  memories,  that  their  religion  narrowed  down 
its  charities  to  Christians  only  ;  and  forgot,  and  despised,  and 
oppressed  these  forlorn  children  of  the  forest. 

There  is,  indeed,  in  the  fate  of  these  unfortunate  beings,  much  to 
awaken  our  sympathy,  and  much  to  disturb  the  sobriety  of  our 
judgment ;  much,  which  may  be  urged  to  excuse  their  own  atrocities  ; 
much  in  their  characters,  which  betrays  us  into  an  involuntary  admi- 
ration. What  can  be  more  melancholy  than  their  history  ?  By  a 
law  of  their  nature,  they  seem  destined  to  a  slow,  but  sure 
extinction.  Every  where,  at  the  approach  of  the  white  man,  they 
fade  away.  We  hear  the  rustling  of  their  footsteps,  like  that  of  the 
withered  leaves  of  autumn,  and  they  are  gone  for  ever.  They  pass 
mournfully  by  us,  and  they  return  no  more.  Two  centuries  ago, 
the  smoke  of  their  wigwams  and  the  fires  of  their  councils  rose  in 
.every  valley,  from  Hudson's  Bay  to  the  farthest  Florida,  from  the 
ocean  to  the  Mississippi  and  the  lakes.  The  shouts  of  victory  and 
the  war-dance  rang  through  the  mountains  and  the  glades.  The 
thick  arrows  and  the  deadly  tomahawk  whistled  through  the  for- 
ests ;  and  the  hunter's  trace  and  the  dark  encampment  startled 
the  wild  beasts  in  their  lairs.  The  warriors  stood  forth  in  their 
glory.  The  young  listened  to  the  songs  of  other  days.  The 
mothers  played  with  their  infants,  and  gazed  on  the  scene  with  warm 
hopes  of  the  future.  The  aged  sat  down  ;  but  they  wept  not. 
They  should  soon  be  at  rest  in  fairer  regions,  where  the  Great  Spirit 
dwelt,  in  a  home  prepared  for  the  brave,  beyond  the  western  skies. 
Braver  men  never  lived  ;  truer  men  never  drew  the  bow.  They 
had  courage,  and  fortitude,  and  sagacity,  and  perseverance,  beyond 
most  of  the  human  race.  They  shrank  from  no  dangers,  and  they 
feared  no  hardships.  If  they  had  the  vices  of  savage  life,  they  had 
the  virtues  also.  They  were  true  to  their  country,  their  friends, 
and  their  homes.  If  they  forgave  not  injury,  neither  did  they 
forget  kindness.  If  their  vengeance  was  terrible,  their  fidelity  and 
generosity  were  unconquerable  also.  Their  love,  like  their  hate, 
stopped  not  on  this  side  of  the  grave. 

But  where  are  they  ?  Where  are  the  villages,  and  warriors, 
and   youth ;    the  sachems  and  the  tribes ;    the  hunters   and  their 


CENTENNIAL    DISCOURSE. 


79 


families?  They  have  perished.  They  are  consumed.  The  wast- 
ing pestilence  has  not  alone  clone  the  mighty  work.  No, — 
nor  famine,  nor  war.  There  has  been  a  mightier  power,  a  moral 
canker,  which  hath  eaten  into  their  heart-cores  —  a  plague,  which 
the  touch  of  the  white  man  communicated  —  a  poison,  which  be- 
trayed them  into  a  lingering  ruin.  The  winds  of  the  Atlantic 
fan  not  a  single  region,  which  they  may  now  call  their  own. 
Already  the  last  feeble  remnants  of  the  race  are  preparing  for  their 
journey  beyond  the  Mississippi.  I  see  them  leave  their  miserable 
homes,  the  aged,  the  helpless,  the  women,  and  the  warriors,  "  few 
and  faint,  yet  fearless  still."  The  ashes  are  cold  on  their  native 
hearths.  The  smoke  no  longer  curls  round  their  lowly  cabins. 
They  move  on  with  a  slow,  unsteady  step.  The  white  man  is 
upon  their  heels,  for  terror  or  despatch  ;  but  they  heed  him  not. 
They  turn  to  take  a  last  look  of  their  deserted  villages.  They  cast 
a  last  glance  upon  the  graves  of  their  fathers.  They  shed  no  tears  ; 
they  utter  no  cries ;  they  heave  no  groans.  There  is  something  in 
their  hearts,  which  passes  speech.  There  is  something  in  their 
looks,  not  of  vengeance  or  submission  ;  but  of  hard  necessity,  which 
stifles  both ;  which  chokes  all  utterance ;  which  has  no  aim  or 
method.  It  is  courage  absorbed  in  despair.  They  linger  but  for 
a  moment.  Their  look  is  onward.  They  have  passed  the  fatal 
stream.  It  shall  never  be  repassed  by  them,  —  no,  never.  Yet 
there  lies  not  between  us  and  them  an  impassable  gulf.  They 
know  and  feel,  that  there  is  for  them  still  one  remove  farther,  not 
distant,  nor  unseen.  It  is  to  the  general  burial-ground  of  their 
race. 

Reason  as  we  may,  it  is  impossible  not  to  read  in  such  a  fate 
much,  that  we  know  not  how  to  interpret ;  much  of  provocation  to 
cruel  deeds  and  deep  resentments ;  much  of  apology  for  wrong  and 
perfidy  ;  much  of  pity,  mingling  with  indignation  ;  much  of  doubt 
and  misgiving  as  to  the  past ;  much  of  painful  recollections ;  much 
of  dark  forebodings. 

Philosophy  may  tell  us,  that  conquest  in  other  cases  has  adopted 
the  conquered  into  its  own  bosom ;  and  thus,  at  no  distant  period, 
given  them  the  common  privileges  of  subjects  ;  —  but  that  the  red 
men  are  incapable  of  such  an  assimilation.  By  their  very  nature 
and  character,  they  can  neither  unite  themselves  with  civil  institu- 
tions, nor  with  safety  be  allowed  to  remain  as  distinct  communities. 
Policy  may  suggest,  that  their  ferocious  passions,  their  independent 
spirit,  and  their  wandering  life  disdain  the  restraints  of  society  ;  that 


80  LITERARY    DISCOURSES. 

they  will  submit  to  superior  force  only,  while  it  chains  them  to  the 
earth  by  its  pressure.  A  wilderness  is  essential  to  their  habits  and 
pursuits.  They  can  neither  be  tamed,  nor  overawed.  They  sub- 
sist by  war  or  hunting  ;  and  the  game  of  the  forest  is  relinquished 
only  for  the  nobler  game  of  man.  The  question,  therefore,  is  ne- 
cessarily reduced  to  the  consideration,  whether  the  country  itself 
shall  be  abandoned  by  civilized  man,  or  maintained  by  his  sword,  as 
the  right  of  the  strongest. 

It  may  be  so ;  perhaps,  in  the  wisdom  of  Providence,  it  must  be 
so.  I  pretend  not  to  comprehend,  or  solve,  such  weighty  difficul- 
ties. But  neither  philosophy  nor  policy  can  shut  out  the  feelings 
of  nature.  Humanity  must  continue  to  sigh  at  the  constant  sacri- 
fices of  this  bold,  but  wasting  race.  And  Religion,  if  she  may  not 
blush  at  the  deed,  must,  as  she  sees  the  successive  victims  depart, 
cling  to  the  altar  with  a  drooping  heart,  and  mourn  over  a  destiny 
without  hope  and  without  example.  Let  our  consolation  be,  that 
our  forefathers  did  not  precipitate  the  evil  days.  Their  aim  was 
peace  ;  their  object  was  the  propagation  of  Christianity. 

There  is  one  other  circumstance  in  the  history  of  the  Colony, 
which  deserves  attention,  because  it  has  afforded  a  theme  for  bitter 
sarcasm  and  harsh  reproach  ;  and,  as  the  principal  scenes  of  the 
tragedy  took  place  on  this  very  spot,  this  seems  a  fit  occasion  to 
rescue  the  character  of  our  forefathers  from  the  wanton  attacks  of 
the  scoffer  and  the  satirist.  I  allude  to  the  memorable  trials  for 
witchcraft  in  this  town,  in  1692,  which  terminated  in  the  death  of 
many  innocent  persons,  partly  from  blind  credulity,  and  partly  from 
overwhelming  fraud.  The  whole  of  these  proceedings  exhibit  mel- 
ancholy proofs  of  the  effect  of  superstition  in  darkening  the  mind, 
and  steeling  the  heart  against  the  dictates  of  humanity.  Indeed, 
nothing  has  ever  been  found  more  vindictive  and  cruel  than  fanat- 
icism, acting  under  the  influence  of  preternatural  terror,  and  assum- 
ing to  punish  offences  created  by  its  own  gloomy  reveries.  Under 
such  circumstances  it  becomes  itself  the  very  demon,  whose  agency 
it  seeks  to  destroy.  It  loses  sight  of  all  the  common  principles  of 
reason  and  evidence.  It  sees  nothing  around  it  but  victims  for 
sacrifice.  It  hears  nothing  but  the  voice  of  its  own  vengeance.  It 
believes  nothing  but  what  is  monstrous  and  incredible.  It  conjures 
up  every  phantom  of  superstition,  and  shapes  it  to  the  living  form 
of  its  own  passions  and  frenzies,  in  short,  insanity  could  hardly 
devise  more  refinements  in  barbarity,  or  profligacy  execute  them 
with  more  malignant  coolness.     In  the  wretched  butcheries  of  these 


CENTENNIAL    DISCOURSE.  81 

times  (for  so  they  in  fact  were),  in  which  law  and  reason  were 
equally  set  at  defiance,  we  have  shocking  instances  of  unnatural 
conduct.  We  find  parents  accusing  their  children,  children  their 
parents,  and  wives  their  husbands,  of  a  crime,  which  must  bring 
them  to  the  scaffold.  We  find  innocent  persons,  misled  by  the 
hope  of  pardon,  or  wrought  up  to  frenzy  by  the  pretended  suffer- 
ings of  others,  freely  accusing  themselves  of  the  same  crime.  We 
find  gross  perjury  practised  to  procure  condemnations,  sometimes 
for  self-protection,  and  sometimes  from  utter  recklessness  of  con- 
sequences. We  find  even  religion  itself  made  an  instrument  of 
vengeance.  We  find  ministers  of  the  gospel  and  judges  of  the 
land  stimulating  the  work  of  persecution,  until,  at  last,  in  its  progress, 
its  desolations  reached  their  own  fire-sides.* 

And  yet,  dark  and  sad  as  is  this  picture,  it  furnishes  no  just 
reproach  upon  this  ancient  town,  beyond  what  belongs  to  it  in  com- 
mon with  all  New  England,  and,  indeed,  with  all  Christendom. 
Thirty  years  before  this  period  there  had  been  executions  for 
witchcraft  in  this  and  other  colonies,  in  Charlestown,  Boston, 
Springfield,  and  Hartford.  It  has  been  justly  observed,  by  an  in- 
telligent historian,!  that  the  importance  given  to  the  New  England 
trials  proceeded  more  from  the  general  panic  than  from  the  num- 
ber executed ;  "  more  having  been  put  to  death  in  a  single  county 
in  England,  in  a  short  space  of  time,  than  have  suffered  in  all 
New  England,  from  the  first  settlement  to  the  present  time." 

Our  forefathers  were  sincere  believers  in  the  reality  of  witchcraft ; 
and  the  same  opinion  then  prevailed  throughout  all  Europe.  The 
possibility,  nay,  the  actual  existence  of  a  commerce  with  evil  spir- 
its, has  had  in  its  support  the  belief  of  many  enlightened  nations  of 
the  world.  Mr.  Justice  Blackstone  has  not  scrupled  to  declare, 
that  to  deny  it  "  is  at  once  flatly  to  contradict  the  revealed  word  of 
God  in  various  passages  both  of  the  Old  and  New  Testament. "J 
I  meddle  not  with  this  matter  of  controversial  divinity.  But  it  is 
certain,  that,  from  the  earliest  times,  it  has  been  punished  as  a  crime 
in  all  Christian  countries,  and  generally,  as  a  mark  of  peculiar  horror 
and  detestation,  with  death.  Such  was  its  punishment  in  England 
at  the  time  of  the  emigration  of  our  ancestors;  and  such  it  continued 
to  be  until  the  reign  of  George  the  Second.  Surely,  when  we  read 
of  convictions  before  so  mild  and  enlightened  a  judge  as  Sir  Matthew 
Hale,  it  should  excite  no  surprise,  that  our  own  judges  were  not 

*  2  Hutch.  Hist.  16  to  60,&c.  t  2  Hutch.  Hist.  15,  16. 

t  4  Bl.  Com.  60;  3  Inst.  43. 
11 


82  LITERARY    DISCOURSES. 

superior  to  the  delusion ;  that  they  possessed  not  a  wisdom  beyond 
the  law.  nor  a  power  to  resist  the  general  credulity.  My  Lord 
Coke,  in  the  simplicity  of  his  own  belief,  loads  witches  with  the 
most  opprobrious  epithets,  as  "  horrible,  devilish,  and  wicked  offend- 
ers ;  "*  and  the  Parliament  of  king  James  the  First  has  enumerated, 
in  studied  detail,  divers  modes  of  conjuration  and  enchantment, 
upon  which  it  has  inflicted  the  punishment  of  death.f  Lord 
Bacon  has  lent  the  credit  of  his  own  great  name  to  preserve  some 
of  the  wonders  and  ointments  of  witchcraft,  with  sundry  wholesome 
restrictions  upon  our  belief  in  their  efficacy  4  And  we  have  high 
authority  for  saying,  that  "  it  became  a  science,  every  where  much 
studied  and  cultivated,  to  distinguish  a  true  witch  by  proper  trials 
and  symptoms."^ 

We  may  lament,  then,  the  errors  of  the  times,  which  led  to  these 
persecutions.  But  surely  our  ancestors  had  no  special  reasons  for 
shame  in  a  belief,  which  had  the  universal  sanction  of  their  own 
and  all  former  ages ;  which  counted  in  its  train  philosophers,  as 
well  as  enthusiasts  ;  which  was  graced  by  the  learning  of  prelates, 
as  well  as  the  countenance  of  kings  ;  which  the  law  supported  by 
its  mandates,  and  the  purest  judges  felt  no  compunctions  in  enforcing. 
Let  Witch  Hill  remain  forever  memorable  by  this  sad  catastrophe, 
not  to  perpetuate  our  dishonor,  but  as  an  affecting,  enduring  proof 
of  human  infirmity ;  a  proof,  that  perfect  justice  belongs  to  one 
judgment-seat  only,  that  which  is  linked  to  the  throne  of  God. 

Time  would  foil  me  to  go  at  large  into  the  history  of  New  Eng- 
land, and  my  own  strength,  as  wTell  as  your  patience,  is  far  spent. 
Yet  it  should  not  be  concealed,  that  we  have  a  proud  consciousness 
of  the  spirit  and  principles  of  our  fathers  throughout  every  period 
of  their  colonial  existence.  At  no  time  were  they  the  advocates 
of  passive  obedience  and  non-resistance  to  rulers,  at  home  or  abroad. 
At  all  times  they  insisted,  that  the  right  of  taxation  and  the  right  of 
representation  were  inseparable  in  a  free  government ;  and  that  on 
that  account  the  power  of  taxation  was  vested  exclusively  in  their 
own  colonial  legislature.  At  all  times  they  connected  themselves, 
with  a  generous  fidelity,  to  the  fortunes  of  the  mother  country,  and 
shared  the  common  burdens,  and  bore  the  common  hardships,  with 
cheerfulness.  The  sons  of  New  England  were  found  in  her  ranks 
in  battle,  foremost  in  danger  ;  but,  as  is  not  unusual  in  colonial 
service,  latest  in   the  rewards  of  victory.     An   ante-revolutionary 

"  3  Inst.  44.  t  Ibid.  41,  45.  J  2  Bacon's  Works,  27,  45,  69. 

§   7  Hume's  Hist.  186. 


CENTENNIAL    DISCOURSE. 


83 


historian,  of  unquestionable  accuracy,  has  said,  that,  "  in  the  course 
of  sixty  years,  the  Province  of  Massachusetts  hath  been  at  a  greater 
expense,  and  hath  lost  more  of  its  inhabitants,  than  all  the  other 
colonies  upon  the  continent  taken  together."  In  the  Indian  wars, 
in  the  successive  attacks  upon  the  French  colonies,  and  in  the  cap- 
ture of  Quebec  and  the  Canadas,  they  bore  an  honorable  and  im- 
portant part.  Even  when  their  first  charter  was  vacated,  their 
resistance  to  the  arbitrary  measures  of  Sir  Edmund  Andros  was  but 
a  prelude  to  the  principles  and  practice  of  the  Revolution. 

Of  the  memorable  events  of  a  later  period  ;  of  the  resistance  to 
British  oppression  ;  of  the  glorious  war  of  Independence ;  of  the 
subsequent  establishment  of  the  national  government,  I  need  not 
speak.  They  are  familiar  to  all  of  us  ;  but  though  repeated  for  the 
thousandth  time,  they  still  possess  an  animating  freshness.  In  the 
struggle  for  independence,  in  which  all  the  colonies  embarked  in  a 
common  cause,  and  all  exhibited  examples  of  heroism  and  public 
spirit,  in  which  all  seemed  to  forget  themselves,  and  remember  only 
their  country,  it  would  be  invidious  to  draw  comparisons  of  relative 
merit,  since  the  true  glory  of  each  is  in  the  aggregate  achievements 
of  all.  Throughout  the  contest,  the  citizens  of  various  states 
fought  side  by  side,  and  shared  the  common  toils.  Their  sufferings 
and  their  fame  were  blended  at  every  step,  in  the  hour  of  peril, 
and  in  the  hour  of  triumph.  Let  not  those  be  separated  in  death, 
who  in  life  were  not  divided. 

But  I  may  say,  that  New  England  was  not  behind  the  other 
states  in  zeal,  in  public  sacrifices,  in  contributions  of  men  and 
money,  in  firmness  of  resolve,  or  in  promptitude  of  action.  The 
blood  of  her  children  was  freely  poured  out,  not  only  on  her  own  soil, 
but  in  every  field,  where  armies  met  in  hostile  array.  It  flowed 
not  on  the  land  alone  ;  the  ocean  received  it  into  its  swelling  bosom. 
Wherever  the  battle  raged,  they  were  found  ;  and  many  a  gallant 
spirit  breathed  his  last  breath  on  the  deck,  with  his  thoughts  still 
warm  with  the  love  of  his  native  New  England.  Let  a  single  fact 
concerning  Massachusetts  suffice  to  establish  no  mean  claim  to 
respect.  Upon  the  final  adjustment  of  the  accounts  of  the  revolu- 
tionary war,  although  her  own  soil  had  been  but  for  a  short  period 
occupied  by  the  enemy,  she  had  expended  eighteen  millions  of 
dollars,  and  the  balance  then  due  to  her  exceeded  one  million. 
One  state  only  in  the  Union  surpassed  her  in  expenditures,  and 
none  in   the  balance  in  her  favor.*     But  this   would  give   a  very 

-  2  Pitkin's  Hist,  of  United  States,  p.  538. 


84  LITERARY    DISCOURSES. 

inadequate  view  of  her  real  efforts.  Her  voluntary  bounties  upon 
enlistments,  her  town  and  county  contributions,  are  almost  incredible, 
when  we  consider  the  general  poverty  and  distress.  But  I  forbear. 
Much  might  be  urged  in  her  favor,  much  in  favor  of  her  New 
England  sisters,  which  has  been  sometimes  remembered,  only  to 
be  forgotten.  Much  might  be  said  of  the  long  array  of  statesmen 
and  divines  and  lawyers  and  physicians,  of  the  literature  and  sci- 
ence, which  have  adorned  our  annals.  Let  it  pass  —  let  it  pass. 
Their  works  shall  praise  them.  They  cannot  be  concealed, 
whenever  the  deeds  of  our  country  are  recited.  The  writer  of  the 
Declaration  of  Independence  is  not  ours  ;  but  the  author  of  the  act 
itself  reposes  among  us.  He,  who  was  "  first  in  war,  first  in  peace, 
and  first  in  the  hearts  of  his  countrymen,"  sleeps  in  his  native  soil 
by  the  sifle  of  the  beautiful  Potomac.  But  the  colony  of  Roger 
Williams,  of  narrow  territory,  yet  of  ample  enterprise,  may  boast  of 
one,  second  in  excellence  only  to  Washington. 

But,  while  we  review  our  past  history,  and  recollect  what  we 
have  been,  and  are,  the  duties  of  this  day  were  but  ill  performed, 
if  we  stopped  here  ;  if,  turning  from  the  past,  and  entering  on  the 
third  century  of  our  political  existence,  we  gave  no  heed  to  the 
voice  of  experience,  and  dwelt  not  with  thoughts  of  earnest,  busy 
solicitude  upon  the  future.  What  is  to  be  the  destiny  of  this  Re- 
public ?  In  proposing  this  question,  I  drop  all  thought  of  New 
England.  She  has  bound  herself  to  the  fate  of  the  Union.  May 
she  be  true  to  it,  now,  and  for  ever  ;  true  to  it,  because  true  to  herself, 
true  to  her  own  principles,  true  to  the  cause  of  religion  and  liberty 
throughout  the  world.  I  speak,  then,  of  our  common  country,  of  that 
blessed  mother,  that  has  nursed  us  in  her  lap,  and  led  us  up  to 
manhood.  What  is  her  destiny  ?  Whither  does  the  finger  of  fate 
point  ?  Is  the  career,  on  which  we  have  entered,  to  be  bright  with 
ages  of  onward  and  upward  glory  ?  Or  is  our  doom  already  re- 
corded in  the  past  history  of  the  earth,  in  the  past  lessons  of  the 
decline  and  fall  of  other  republics?  If  we  are  to  flourish  with  a 
vigorous  glow  tli,  it  must  be,  I  think,  by  cherishing  principles,  in- 
stitutions, pursuits,  and  morals,  such  as  planted,  and  have  hitherto 
supported  New  England.  If  we  are  to  fall,  may  she  still  possess 
the  melancholy  consolation  of  the  Trojan  patriot: 

"  Sat  patriae  Priamoque  datum  ;  si  Pergama  dextrfi 
Defendi  possent.  ciiain  hue  defensa  fuissent." 

I  would  not  willingly  cloud  the  pleasures  of  such  a  day,  even 
with  a  transient  shade.     I  would  not,  that  a  single   care  should  flit 


CENTENNIAL    DISCOURSE.  85 

across  the  polished  brow  of  hope,  if  considerations  of  the  highest 
moment  did  not  demand  our  thoughts,  and  give  us  counsel  of  our 
duties.  Who,  indeed,  can  look  around  him  upon  the  attractions  of 
this  scene,  upon  the  faces  of  the  happy  and  the  free,  the  smiles  of 
youthful  beauty,  the  graces  of  matron  virtue,  the  strong  intellect  of 
manhood,  and  the  dignity  of  age,  and  hail  these  as  the  accompani- 
ments of  peace  and  independence  ;  —  who  can  look  around  him, 
and  not  at  the  same  time  feel,  that  change  is  written  on  all  the 
works  of  man  ;  that  the  breath  of  a  tyrant,  or  the  fury  of  a  corrupt 
populace,  may  destroy,  in  one  hour,  what  centuries  have  slowly 
consolidated  ?  It  is  the  privilege  of  great  minds,  that  to  them 
"  coming  events  cast  their  shadows  before."  We  may  not  possess 
this  privilege  ;  but  it  is  true  wisdom,  not  to  blind  ourselves  to  dan- 
gers, which  are  in  full  view ;  and  true  prudence,  to  guard  against 
those,  of  which  experience  has  already  admonished  us. 

When  we  reflect  on  what  has  been,  and  is,  how  is  it  possible  not 
to  feel  a  profound  sense  of  the  responsibleness  of  this  Republic  to 
all  future  ages  ?  What  vast  motives  press  upon  us  for  lofty  efforts  I 
What  brilliant  prospects  invite  our  enthusiasm  !  What  solemn 
warnings  at  once  demand  our  vigilance,  and  moderate  our  confi- 
dence ! 

The  old  world  has  already  revealed  to  us,  in  its  unsealed  books, 
the  beginning  and  end  of  all  its  own  marvellous  struggles  in  the 
cause  of  liberty.  Greece,  lovely  Greece,  "  the  land  of  scholars 
and  the  nurse  of  arms,"  where  sister  republics,  in  fair  processions, 
chanted  the  praises  of  liberty  and  the  gods  ;  where,  and  what  is 
she  ?  For  two  thousand  years,  the  oppressor  has  bound  her  to  the 
earth.  Her  arts  are  no  more.  The  last  sad  relics  of  her  temples 
are  but  the  barracks  of  a  ruthless  soldiery  ;  the  fragments  of  her 
columns  and  her  palaces  are  in  the  dust,  yet  beautiful  in  ruin.  She 
fell  not,  when  the  mighty  were  upon  her.  Her  sons  were  united 
at  Thermopylae  and  Marathon  ;  and  the  tide  of  her  triumph  rolled 
back  upon  the  Hellespont.  She  was  conquered  by  her  own  fac- 
tions. She  fell  by  the  hands  of  her  own  people.  The  Man  of 
Macedonia  did  not  the  work  of  destruction.  It  was  already  done, 
by  her  own  corruptions,  banishments,  and  dissensions.  Rome, 
republican  Rome,  whose  eagles  glanced  in  the  rising  and  setting 
sun,  where,  and  what  is  she  ?  The  Eternal  City  yet  remains,  proud 
even  in  her  desolation,  noble  in  her  decline,  venerable  in  the 
majesty  of  religion,  and  calm  as  in  the  composure  of  death.  The 
malaria  has  but  travelled  in   the   paths  worn  by  her  destroyers. 


86  LITERARY    DISCOURSES. 

More  than  eighteen  centuries  have  mourned  over  the  loss  of  her 
empire.  A  mortal  disease  was  upon  her  vitals  before  Caesar  had 
crossed  the  Rubicon ;  and  Brutus  did  not  restore  her  health  by  the 
deep  probings  of  the  senate  chamber.  The  Goths  and  Vandals 
and  Huns,  the  swarms  of  the  North,  completed  only  what  was 
already  begun  at  home.  Romans  betrayed  Rome.  The  legions 
were  bought  and  sold  ;  but  the  people  offered  the  tribute  money. 

And  where  are  the  republics  of  modern  times,  which  clustered 
round  immortal  Italy  ?  Venice  and  Genoa  exist  but  in  name. 
The  Alps,  indeed,  look  down  upon  the  brave  and  peaceful  Swiss 
in  their  native  fastnesses  ;  but  the  guaranty  of  their  freedom  is  in 
their  weakness,  and  not  in  their  strength.  The  mountains  are  not 
easily  crossed,  and  the  vallies  are  not  easily  retained.  When  the 
invader  comes,  he  moves  like  an  avalanche,  carrying  destruction  in 
his  path.  The  peasantry  sinks  before  him.  The  country  is  too 
poor  for  plunder  ;  and  too  rough  for  valuable  conquest.  Nature 
presents  her  eternal  barriers  on  every  side  to  check  the  wantonness 
of  ambition  ;  and  Switzerland  remains,  with  her  simple  institutions, 
a  military  road  to  fairer  climates,  scarcely  worth  a  permanent  pos- 
session, and  protected  by  the  jealousy  of  her  neighbours. 

We  stand,  the  latest,  and,  if  we  fail,  probably  the  last  experiment 
of  self-government  by  the  people.  We  have  begun  it  under  cir- 
cumstances of  the  most  auspicious  nature.  We  are  in  the  vigor 
of  youth.  Our  growth  has  never  been  checked  by  the  oppressions 
of  tyranny.  Our  constitutions  have  never  been  enfeebled  by  the 
vices  or  luxuries  of  the  old  world.  Such  as  we  are,  we  have  been 
from  the  beginning  ;  simple,  hardy,  intelligent,  accustomed  to  self- 
government  and  self-respect.  The  Atlantic  rolls  between  us  and 
any  formidable  foe.  Within  our  own  territory,  stretching  through 
many  degrees  of  latitude  and  longitude,  we  have  the  choice  of 
many  products,  and  many  means  of  independence.  The  govern- 
ment is  mild.  The  press  is  free.  Religion  is  free.  Knowledge 
reaches,  or  may  reach,  every  home.  What  fairer  prospect  of  suc- 
cess could  be  presented  ?  What  means  more  adequate  to  accom- 
plish the  sublime  end  ?  What  more  is  necessary  than  for  the 
people  to  preserve  what  they  themselves  have  created  ? 

Already  has  the  age  caught  the  spirit  of  our  institutions.  It  has 
already  ascended  the  Andes,  and  snuffed  the  breezes  of  both 
oceans.  It  has  infused  itself  into  the  life-blood  of  Europe,  and 
warmed  the  sunny  plains  of  France,  and  the  low  lands  of  Holland. 
It  has  touched  the  philosophy  of  Germany  and  the  North  ;  and, 


CENTENNIAL  DISCOURSE.  87 

moving  onward  to  the  South,  has  opened  to  Greece  the  lessons  of 
her  better  days. 

Can  it  be,  that  America,  under  such  circumstances,  can  betray 
herself?  that  she  is  to  be  added  to  the  catalogue  of  republics, 
the  inscription  upon  whose  ruins  is,  "  They  were,  but  they  are 
not"?     Forbid  it,  my  countrymen;  forbid  it,  Heaven. 

I  call  upon  you,  Fathers,  by  the  shades  of  your  ancestors,  by  the 
dear  ashes  which  repose  in  this  precious  soil,  by  all  you  are,  and 
all  you  hope  to  be  ;  resist  every  project  of  disunion,  resist  every 
encroachment  upon  your  liberties,  resist  every  attempt  to  fetter 
your  consciences,  or  smother  your  public  schools,  or  extinguish 
your  system  of  public  instruction. 

I  call  upon  you,  Mothers,  by  that  which  never  fails  in  woman, 
the  love  of  your  offspring  ;  teach  them,  as  they  climb  your  knees, 
or  lean  on  your  bosoms,  the  blessings  of  liberty.  Swear  them  at 
the  altar,  as  with  their  baptismal  vows,  to  be  true  to  their  country, 
and  never  to  forget  or  forsake  her. 

I  call  upon  you,  Young  Men,  to  remember  whose  sons  you  are  ; 
whose  inheritance  you  possess.  Life  can  never  be  too  short,  which 
brings  nothing  but  disgrace  and  oppression.  Death  never  comes 
too  soon,  if  necessary  in  defence  of  the  liberties  of  your  country. 

I  call  upon  you,  Old  Men,  for  your  counsels,  and  your  prayers, 
and  your  benedictions.  May  not  your  gray  hairs  go  clown  in  sorrow 
to  the  grave,  with  the  recollection,  that  you  have  lived  in  vain. 
May  not  your  last  sun  sink  in  the  west  upon  a  nation  of  slaves. 

No  —  I  read  in  the  destiny  of  my  country  far  better  hopes,  far 
brighter  visions.  We,  who  are  now  assembled  here,  must  soon  be 
gathered  to  the  congregation  of  other  days.  The  time  of  our 
departure  is  at  hand,  to  make  way  for  our  children  upon  the  theatre 
of  life.  May  God  speed  them  and  theirs.  May  he,  who,  at  the 
distance  of  another  century,  shall  stand  here  to  celebrate  this  day, 
still  look  round  upon  a  free,  happy,  and  virtuous  people.  May  he 
have  reason  to  exult,  as  we  do.  May  he,  with  all  the  enthusiasm 
of  truth,  as  well  as  of  poetry,  exclaim,  that  here  is  still  his  country, 

"  Zealous,  yet  modest ;    innocent,  though  free  ; 
Patient  of  toil ;    serene  amidst  alarms  ; 
Inflexible  in  faith  ;   invincible  in  arms." 


ADDRESS 


DELIVERED  OX  THE  CONSECRATION  OP  THE  CEMETERY  AT  MOUNT  AUBURN, 
SEPTEMBER  21,    1831. 


My  Friends, 

The  occasion,  which  brings  us  together,  has  much  in  it  calcu- 
lated to  awaken  our  sensibilities,  and  cast  a  solemnity  over  our 
thoughts. 

We  are  met  to  consecrate  these  grounds  exclusively  to  the  ser- 
vice and  repose  of  the  dead. 

The  duty  is  not  new  ;  for  it  has  been  performed  for  countless 
millions.  The  scenery  is  not  new  ;  for  the  hill  and  the  valley,  the 
dark,  silent  dell,  and  the  deep  forest,  have  often  been  devoted  to 
the  same  pious  purpose.  But  that,  which  must  always  give  it  a 
peculiar  interest,  is,  that  it  can  rarely  occur,  except  at  distant  inter- 
vals ;  and,  whenever  it  does,  it  must  address  itself  to  feelings  intel- 
ligible to  all  nations,  and  common  to  all  hearts. 

The  patriarchal  language  of  four  thousand  years  ago  is  precisely 
that,  to  which  we  would  now  give  utterance.  We  are  "  strangers 
and  sojourners  "  here.  We  have  need  of  "  a  possession  of  a  bury- 
ing-place,  that  we  may  bury  our  dead  out  of  our  sight."  Let  us 
have  "  the  field,  and  the  cave,  which  is  therein  ;  and  all  the  trees, 
that  are  in  the  field,  that  are  in  all  the  borders  round  about"; 
and  let  them  "  be  made  sure  for  a  possession  of  a  burying-place." 

It  is  the  duty  of  the  living  thus  to  provide  for  the  dead.  It  is 
not  a  mere  office  of  pious  regard  for  others  ;  but  it  comes  home  to 
our  own  bosoms,  as  those  who  are  soon  to  enter  upon  the  common 
inheritance. 

If  there  arc  any  feelings  of  our  nature,  not  bounded  by  earth, 
and  yet  stopping  short  of  the  skies,  which  are  more  strong  and 
more  universal  than  all  others,  they  will  be   found  in  our  solicitude 


ADDRESS  AT  THE  CONSECRATION  OF  MOUNT  AUBURN.     89 

as  to  the  time  and  place  and  manner  of  our  death  ;  in  the  desire 
to  die  in  the  arms  of  our  friends  ;  to  have  the  last  sad  offices  to 
our  remains  performed  by  their  affection  ;  to  repose  in  the  land  of 
our  nativity  ;  to  be  gathered  to  the  sepulchres  of  our  fathers.  It 
is  almost  impossible  for  us  to  feel,  nay,  even  to  feign,  indifference 
on  such  a  subject. 

Poetry  has  told  us  this  truth,  in  lines  of  transcendent  beauty  and 
force,  which  find  a  response  in  every  breast  ;  — 

"  For  who,  to  dumb  forgetfulness  a  prey, 

This  pleasing,  anxious  being  e'er  resigned, 
Left  the  warm  precincts  of  the  cheerful  day, 
Nor  cast  one  longing,  lingering  look  behind  ? 

"  On  some  fond  breast  the  parting  soul  relies ; 
Some  pious  drops  the  closing  eye  requires  ; 
E'en  from  the  tomb  the  voice  of  nature  cries; 
E'en  in  our  ashes  live  their  wonted  fires." 

It  is  in  vain,  that  philosophy  has  informed  us,  that  the  whole 
earth  is  but  a  point  in  the  eyes  of  its  Creator,  —  nay,  of  his  own 
creation;  that,  wherever  we  are,  —  abroad,  or  at  home,  —  on  the 
restless  ocean,  or  the  solid  land,  —  we  are  still  under  the  protection 
of  his  providence,  and  safe,  as  it  were,  in  the  hollow  of  bis  hand. 
It  is  in  vain,  that  Religion  has  instructed  us,  that  we  are  but  dust, 
and  to  dust  we  shall  return  ;  that,  whether  our  remains  are  scat- 
tered to  the  corners  of  the  earth,  or  gathered  in  sacred  urns,  there 
is  a  sure  and  certain  hope  of  a  resurrection  of  the  body  and  a  life 
everlasting.  These  truths,  sublime  and  glorious  as  they  are,  leave 
untouched  the  feelings,  of  which  I  have  spoken,  or.  rather,  they 
impart  to  them  a  more  enduring  reality.  Dust  as  we  are,  the  frail 
tenements,  which  enclose  our  spirits  but  for  a  season,  are  dear,  are 
inexpressibly  clear  to  us.  We  derive  solace,  nay,  pleasure,  from 
the  reflection,  that,  when  the  hour  of  separation  comes,  these 
earthly  remains  will  still  retain  the  tender  regard  of  those,  whom 
we  leave  behind  ;  that  the  spot,  where  they  shall  lie,  will  be 
remembered  with  a  fond  and  soothing  reverence  ;  that  our  chil- 
dren will  visit  it  in  the  midst  of  their  sorrows  ;  and  our  kindred,  in 
remote  generations,  feel  that  a  local  inspiration  hovers  round  it. 

Let  him  speak,  who  has  been  on  a  pilgrimage  of  health  to  a 
foreign  land.  Let  him  speak,  who  has  watched  at  the  couch  of  a 
dying  friend,  far  from  bis  chosen  borne.  Let  him  speak,  who  has 
committed  to  the  bosom  of  the  deep,  with  a  sudden,  startling 
plunge,  the  narrow  shroud  of  some  relative  or  companion.  Let 
12 


DO  LITERARY    DISCOURSES. 

such  speak  ;  and  they  will  tell  you,  that  there  is  nothing,  which 
wrings  the  heart  of  the  dying,  —  aye,  and  of  the  surviving,  —  with 
sharper  agony,  than  the  thought,  that  they  are  to  sleep  their  last 
sleep  in  the  land  of  strangers,  or  in  the  unseen  depths  of  the  ocean. 

"  Bury  me  not,  I  pray  thee,"  said  the  patriarch  Jacoh,  "  bury 
me  not  in  Egypt :  but  I  will  lie  with  my  fathers.  And  thou  shalt 
carry  me  out  of  Egypt;  and  bury  me  in  their  burying-place."  — 
"  There  they  buried  Abraham,  and  Sarah  his  wife  ;  there  they 
buried  Isaac,  and  Rebecca  his  wife  ;  and  there  I  buried  Leah." 

Such  are  the  natural  expressions  of  human  feeling,  as  they  fall 
from  the  lips  of  the  dying.  Such  are  the  reminiscences,  that 
for  ever  crowd  on  the  confines  of  the  passes  to  the  grave.  We  seek 
again  to  have  our  home  there  with  our  friends,  and  to  be  blest  by  a 
communion  with  them.  It  is  a  matter  of  instinct,  not  of  reasoning. 
It  is  a  spiritual  impulse,  which  supersedes  belief,  and  disdains 
question. 

But  it  is  not  chiefly  in  regard  to  the  feelings  belonging  to  our 
own  mortality,  however  sacred  and  natural,  that  we  should  contem- 
plate the  establishment  of  repositories  of  this  sort.  There  are 
higher  moral  purposes,  and  more  affecting  considerations,  which 
belong  to  the  subject.  We  should  accustom  ourselves  to  view 
them  rather  as  means  than  as  ends ;  rather  as  influences  to  govern 
human  conduct,  and  to  moderate  human  suffering,  than  as  cares 
incident  to  a  selfish  foresight. 

It  is  to  the  living  mourner  —  to  the  parent,  weeping  over  his 
dear  dead  child  —  to  the  husband,  dwelling  in  his  own  solitary 
desolation  —  to  the  widow,  whose  heart  is  broken  by  untimely 
sorrow  —  to  the  friend,  who  misses,  at  every  turn,  the  presence  of 
some  kindred  spirit  —  it  is  to  these,  that  the  repositories  of  the 
dead  bring  home  thoughts  full  of  admonition,  of  instruction,  and 
slowly,  but  surely,  of  consolation  also.  They  admonish  us,  by  their 
very  silence,  of  our  own  frail  and  transitory  being.  They  instruct 
us  in  the  true  value  of  life,  and  in  its  noble  purposes,  its  duties,  and 
its  destination.  They  spread  around  us,  in  the  reminiscences  of 
the  past,  sources  of  pleasing,  though  melancholy  reflection. 

We  dwell  with  pious  fondness  on  the  characters  and  virtues  of 
the  departed  ;  and,  as  time  interposes  its  growing  distances  between 
us  and  them,  we  gather  up,  with  more  solicitude,  the  broken  frag- 
ments of  memory,  and  weave,  as  it  were,  into  our  very  hearts,  the 
threads  of  their  history.  As  we  sit  down  by  their  graves,  we  seem 
to  hear  the  tones  of  their  affection  whispering  in   our   ears.     We 


ADDRESS   AT  THE   CONSECRATION   OF   MOUNT  AUBURN.  91 

listen  to  the  voice  of  their  wisdom,  speaking  in  the  depths  of  our 
souls.  We  shed  our  tears ;  but  they  are  no  longer  the  burning- 
tears  of  agony.  They  relieve  our  drooping  spirits,  and  come  no 
longer  over  us  with  a  deathly  faintness.  We  return  to  the  world, 
and  we  feel  ourselves  purer,  and  better,  and  wiser,  for  this  com- 
munion with  the  dead. 

I  have  spoken  but  of  feelings  and  associations  common  to  all 
ages,  and  all  generations  of  men  —  to  the  rude  and  the  polished  — 
to  the  barbarian  and  the  civilized  —  to  the  bond  and  the  free  —  to 
the  inhabitant  of  the  dreary  forests  of  the  north,  and  the  sultry 
regions  of  the  south  —  to  the  worshipper  of  the  sun,  and  the  wor- 
shipper of  idols — to  the  heathen,  dwelling  in  the  darkness  of  his 
cold  mythology,  and  to  the  Christian,  rejoicing  in  the  light  of  the 
true  God.  Every  where  we  trace  them,  in  the  characteristic  re- 
mains of  the  most  distant  ages  and  nations,  and  as  far  back  as 
human  history  carries  its  traditionary  outlines.  They  are  found 
in  the  barrows,  and  cairns,  and  mounds  of  olden  times,  reared  by 
the  uninstructed  affection  of  savage  tribes ;  and  every  where  the 
spots  seem  to  have  been  selected  with  the  same  tender  regard  to 
the  living  and  the  dead ;  that  the  magnificence  of  nature  might 
administer  comfort  to  human  sorrow,  and  incite  human  sympathy. 

The  aboriginal  Germans  buried  their  dead  in  groves  consecrated 
by  their  priests.  The  Egyptians  gratified  their  pride,  and  soothed 
their  grief,  by  interring  them  in  their  Elysian  fields,  or  embalming 
them  in  their  vast  catacombs,  or  enclosing  them  in  their  stupendous 
pyramids,  the  wonder  of  all  succeeding  ages.  The  Hebrews 
watched  with  religious  care  over  their  places  of  burial.  They 
selected,  for  this  purpose,  ornamented  gardens,  and  deep  forests, 
and  fertile  valleys,  and  lofty  mountains ;  and  they  still  designate 
them,  with  a  sad  emphasis,  as  the  "  House  of  the  Living."  The 
ancient  Asiatics  lined  the  approaches  to  their  cities  with  sculptured 
sarcophagi,  and  mausoleums,  and  other  ornaments,  embowered  in 
shrubbery  ;  traces  of  which  may  be  seen  among  their  magnificent 
ruins.  The  Greeks  exhausted  the  resources  of  their  exquisite  art 
in  adorning  the  habitations  of  the  dead.  They  discouraged  inter- 
ments within  the  limits  of  their  cities  ;  and  consigned  their  relics 
to  shady  groves,  in  the  neighbourhood  of  murmuring  streams  and 
mossy  fountains,  close  by  the  favorite  resorts  of  those,  who  were 
engaged  in  the  study  of  philosophy  and  nature ;  and  called  them, 
with  the  elegant  expressiveness  of  their  own  beautiful  language, 


92  LITERARY    DISCOURSES. 

Cemeteries,*  or  "Places  of  Repose."  The  Romans,  faithilu 
to  the  example  of  Greece,  erected  the  monuments  to  the  dead  in 
the  suburbs  of  the  Eternal  City  (as  they  proudly  denominated  it), 
on  the  sides  of  their  spacious  roads,  in  the  midst  of  trees,  and 
ornamental  walks,  and  ever-varying  flowers.  The  Appian  Way 
was  crowded  with  columns,  and  obelisks,  and  cenotaphs,  in 
memory  of  their  heroes  and  sages  ;  and,  at  every  turn,  the  short,  but 
touching  inscription  met  the  eye,  —  Siste,  Viator, —  Pause,  Trav- 
eller,—  inviting  at  once  to  sympathy  and  thoughtfulness.  Even 
the  humblest  Roman  could  read  on  the  humblest  gravestone  the 
kind  offering  — "  May  the  earth  lie  lightly  on  these  remains  !"  f 
And  the  Moslem  successors  of  the  emperors,  indifferent  as  they 
may  be  to  the  ordinary  exhibitions  of  the  fine  arts,  place  their 
burying-grounds  in  rural  retreats,  and  embellish  them  with  studious 
taste,  as  a  religious  duty.  The  cypress  is  planted  at  the  head  and 
foot  of  every  grave,  and  waves  with  a  mournful  solemnity  over  it. 
These  devoted  grounds  possess  an  inviolable  sanctity.  The  ravages 
of  war  never  reach  them  ;  and  victory  and  defeat  equally  respect 
the  limits  of  their  domain.  So  that  it  has  been  remarked,  with 
equal  truth  and  beauty,  that,  while  the  cities  of  the  living  are  sub- 
ject to  all  the  desolations  and  vicissitudes  incident  to  human  affairs, 
the  cities  of  the  dead  enjoy  an  undisturbed  repose,  without  even 
the  shadow  of  change. 

But  I  will  not  dwell  upon  facts  of  this  nature.  They  demon- 
strate, however,  the  truth,  of  which  I  have  spoken.  They  do 
more ;  they  furnish  reflections  suitable  for  our  own  thoughts  on  the 
present  occasion. 

If  this  tender  regard  for  the  dead  be  so  absolutely  universal,  and 
so  deeply  founded  in  human  affection,  why  is  it  not  made  to  exert 
a  more  profound  influence  on  our  lives  ?  Why  do  we  not  enlist  it 
with  more  persuasive  energy  in  the  cause  of  human  improvement? 
Why  do  we  not  enlarge  it  as  a  source  of  religious  consolation  ? 
Why  do  we  not  make  it  a  more  efficient  instrument  to  elevate 
ambition,  to  stimulate  genius,  and  to  dignify  learning  ?  Why  do 
we  not  connect  it  indissolubly  with  associations,  which  charm  us  in 
nature,  and  engross  us  in  art?  Why  do  we  not  dispel  from  it  that 
unlovely  gloom,  from  which  our  hearts  turn,  as  from  a  darkness 
that  ensnares,  and  a  horror  that  appals  our  thoughts  ? 


'  /coiftnrfyix — literally,  places  of  sleep.  t  "  Sit  tibi  terra  levis." 


ADDRESS  AT  THE  CONSECRATION  OF  MOUNT  AUBURN.     93 

To  many,  nay,  to  most  of  the  heathen,  the  burying-placc  was 
the  end  of  all  things.  They  indulged  no  hope,  at  least,  no  solid 
hope,  of  any  future  intercourse  or  re-union  with  their  friends.  The 
farewell  at  the  grave  was  a  long,  and  an  everlasting  farewell.  At 
the  moment  when  they  breathed  it,  it  brought  to  their  hearts  a  start- 
ling sense  of  their  own  wretchedness.  Yet,  when  the  first  tumults 
of  anguish  were  passed,  they  visited  the  spot,  and  strewed  flowers, 
and  garlands,  and  crowns  around  it,  to  assuage  their  grief,  and 
nourish  their  piety.  They  delighted  to  make  it  the  abode  of  the 
varying  beauties  of  nature  ;  to  give  it  attractions,  which  should 
invite  the  busy  and  the  thoughful  ;  and  yet,  at  the  same  time,  af- 
ford ample  scope  for  the  secret  indulgence  of  sorrow. 

Why  should  not  Christians  imitate  such  examples  ?  They  have 
far  nobler  motives  to  cultivate  moral  sentiments  and  sensibilities ; 
to  make  cheerful  the  pathways  to  the  grave ;  to  combine  with  deep 
meditations  on  human  mortality  the  sublime  consolations  of  religion. 
We  know,  indeed,  as  they  did  of  old,  that  "  man  goeth  to  his  long 
home,  and  the  mourners  go  about  the  streets."  But  that  home  is 
not  an  everlasting  home  ;  and  the  mourners  may  not  weep,  as  those 
who  are  without  hope.  What  is  the  grave  to  us,  but  a  thin  barrier, 
dividing  time  from  eternity,  and  earth  from  heaven  ?  What  is 
it,  but  "  the  appointed  place  of  rendezvous,  where  all  the  travellers 
on  life's  journey  meet,"  for  a  single  night  of  repose  ? 

"  'T  is  but  a  night — a  long  and  moonless  night, 
We  make  the  grave  our  bed,  and  then  are  gone." 

Know  we  not, 

"  The  time  draws  on 
When  not  a  single  spot  of  burial  earth, 
Whether  on  land,  or  in  the  spacious  sea, 
But  must  give  up  its  long  committed  dust 
Inviolate  ?" 

Why,  then,  should  we  darken,  with  systematic  caution,  all  the  ave- 
nues to  these  repositories?  Why  should  we  deposit  the  remains  of 
our  friends  in  loathsome  vaults,  or  beneath  the  gloomy  crypts  and 
cells  of  our  churches;  where  the  human  foot  is  never  heard,  save 
when  the  sickly  taper  lights  some  new  guest  to  his  appointed 
apartment,  and  "lets  fall  a  supernumerary  horror"  on  the  passing 
procession  ?  Why  should  we  measure  out  a  narrow  portion  of  earth 
for  our  grave-yards,  in  the  midst  of  our  cities;  and  heap  the  dead 
upon  each  other,  with  a  cold,  calculating  parsimony,  disturbing  their 


94  LITERARY    DISCOURSES. 

ashes,  and  wounding  the  sensibilities  of  the  living?  Why  should 
we  expose  our  burying-grounds  to  the  broad  glare  of  day,  to  the 
unfeeling  gaze  of  the  idler,  to  the  noisy  press  of  business,  to  the 
discordant  shouts  of  merriment,  or  to  the  baleful  visitations  of 
the  dissolute  ?  Why  should  we  bar  up  their  approaches  against 
real  mourners,  whose  delicacy  would  shrink  from  observation,  but 
whose  tenderness  would  be  soothed  by  secret  visits  to  the  grave, 
and  holding  converse  there  with  their  departed  joys  ?  Why  all  this 
unnatural  restraint  upon  our  sympathies  and  sorrows,  which  con- 
fines the  visit  to  the  grave  to  the  only  time  in  which  it  must  be 
utterly  useless  —  when  the  heart  is  bleeding  with  fresh  anguish, 
and  is  too  weak  to  feel,  and  too  desolate  to  desire  consolation  ? 

It  is  painful  to  reflect,  that  the  cemeteries  in  our  cities,  crowded, 
on  all  sides,  by  the  overhanging  habitations  of  the  living,  are  walled 
in  only  to  preserve  them  from  violation  ;  and  that  in  our  country 
towns  they  are  left  in  a  sad,  neglected  state,  exposed  to  every  sort 
of  intrusion,  with  scarcely  a  tree  to  shelter  their  barrenness,  or  a 
shrub  to  spread  a  grateful  shade  over  the  new  made  hillock. 

These  things  were  not  always  so  among  Christians.  They  are 
not  worthy  of  us.  They  are  not  worthy  of  Christianity  in  our  day. 
There  is  much  in  these  things,  that  casts  a  just  reproach  upon  us 
in  the  past.  There  is  much,  that  demands  for  the  future  a  more 
spiritual  discharge  of  our  duties. 

Our  cemeteries,  rightly  selected,  and  properly  arranged,  may  be 
made  subservient  to  some  of  the  highest  purposes  of  religion  and 
human  duty.  They  may  preach  lessons,  to  which  none  may  re- 
fuse to  listen,  and  which  all  that  live  must  hear.  Truths  may  be 
there  felt  and  taught,  in  the  silence  of  our  own  meditations,  more 
persuasive,  and  more  enduring,  than  ever  flowed  from  human  lips. 
The  grave  hath  a  voice  of  eloquence,  ay,  of  superhuman  elo- 
quence, which  speaks  at  once  to  the  thoughtlessness  of  the  rash, 
and  the  devotion  of  the  good  ;  which  addresses  all  times,  and  all 
ages,  and  all  sexes  ;  which  tells  of  wisdom  to  the  wise,  and  of  com- 
fort to  the  afflicted  ;  which  warns  us  of  our  follies  and  our  dangers ; 
which  whispers  to  us  in  accents  of  peace,  and  alarms  us  in  tones  of 
terror  ;  which  steals  with  a  healing  balm  into  the  stricken  heart, 
and  lifts  up  and  supports  the  broken  spirit ;  which  awakens  a  new 
enthusiasm  for  virtue,  and  disciplines  us  for  its  severer  trials  and 
duties ;  which  calls  up  the  images  of  the  illustrious  dead,  with  an 
animating  presence,  for  our  example  and  glory  ;  and  which  demands 
of  us,  as  men,  as  patriots,  as  Christians,  as  immortals,  that  the  pow- 


ADDRESS  AT  THE  CONSECRATION  OF  MOUNT  AUBURN.     95 

ers  given  by  God  should  be  devoted  to  his  service,  and  the  minds 
created  by  his  love,  should  return  to  him  with  larger  capacities  for 
virtuous  enjoyment,  and  with  more  spiritual  and  intellectual  bright- 
ness. 

It  should  not  be  for  the  poor  purpose  of  gratifying  our  vanity 
or  pride,  that  we  erect  columns,  and  obelisks,  and  monuments  to 
the  dead  ;  but  that  we  may  read  thereon  much  of  our  own  des- 
tiny and  duty.  We  know,  that  man  is  the  creature  of  associations 
and  excitements.  Experience  may  instruct,  but  habit,  and  appe- 
tite, and  passion,  and  imagination,  will  exercise  a  strong  dominion 
over  him.  These  are  the  Fates,  which  weave  the  thread  of  his 
character,  and  unravel  the  mysteries  of  his  conduct.  The  truth, 
which  strikes  home,  must  not  only  have  the  approbation  of  his  rea- 
son, but  it  must  be  embodied  in  a  visible,  tangible,  practical  form. 
It  must  be  felt,  as  well  as  seen.     It  must  warm,  as  well  as  convince. 

It  was  a  saying  of  Themistocles,  that  the  trophies  of  Miltiades 
would  not  suffer  him  to  sleep.  The  feeling,  thus  expressed,  has  a 
deep  foundation  in  the  human  mind  ;  and,  as  it  is  well  or  ill  di- 
rected, it  will  cover  us  with  shame,  or  exalt  us  to  glory.  The 
deeds  of  the  great  attract  but  a  cold  and  listless  admiration,  when 
they  pass  in  historical  order  before  us  like  moving  shadows.  It  is 
the  trophy  and  the  monument,  which  invest  them  with  a  substance 
of  local  reality.  Who,  that  has  stood  by  the  tomb  of  Washington 
on  the  quiet  Potomac,  has  not  felt  his  heart  more  pure,  his  wishes 
more  aspiring,  his  gratitude  more  warm,  and  his  love  of  country 
touched  by  a  holier  flame  ?  Who,  that  should  see  erected,  in 
shades  like  these,  even  a  cenotaph  to  the  memory  of  a  man  like 
Buckminster,  that  prodigy  of  early  genius,  would  not  feel,  that 
there  is  an  excellence,  over  which  death  hath  no  power,  but  which 
lives  on  through  all  time,  still  freshening  with  the  lapse  of  ages  ? 

But,  passing  from  those,  who,  by  their  talents  and  virtues,  have 
shed  lustre  on  the  annals  of  mankind,  to  cases  of  mere  private 
bereavement ;  who,  that  should  deposit,  in  shades  like  these,  the 
remains  of  a  beloved  friend,  would  not  feel  a  secret  pleasure  in  the 
thought,  that  the  simple  inscription  to  his  worth  would  receive  the 
passing  tribute  of  a  sigh  from  thousands  of  kindred  hearts  ?  that 
the  stranger  and  the  traveller  would  linger  on  the  spot  with  a  feel- 
ing of  reverence  ?  that  they,  the  very  mourners  themselves, 
when  they  should  revisit  it,  would  find  there  the  verdant  sod,  and 
the  fragrant  flower,  and  the  breezy  shade  ?  that  they  might  there, 
unseen  except  of  God,  offer  up  their  prayers,  or  indulge  the  luxury 


90  LITERARY    DISCOURSES. 

of  grief?  that  they  might  there  realize,  in  its  full  force,  the  af- 
fecting beatitude  of  the  Scriptures;  "Blessed  are  they  that  mourn, 
for  they  shall  he  comforted  "  ? 

Surely,  surely,  we  have  not  done  all  our  duty,  if  there  yet  re- 
mains a  single  incentive  to  human  virtue,  without  its  clue  play  in 
the  action  of  life,  or  a  single  stream  of  happiness,  which  has  not 
been  made  to  flow  in  upon  the  waters  of  affliction. 

Considerations,  like  those  which  have  been  suggested,  have,  for 
a  long  time,  turned  the  thoughts  of  many  distinguished  citizens  to 
the  importance  of  some  more  appropriate  places  of  sepulture. 
There  is  a  growing  sense  in  the  community  of  the  inconveniences 
and  painful  associations,  not  to  speak  of  the  unhealthiness,  of  inter- 
ments beneath  our  churches.  The  tide,  which  is  flowing,  with 
such  a  steady  and  widening  current,  into  the  narrow  peninsula  of  our 
metropolis,  not  only  forbids  the  enlargement  of  the  common  limits, 
but  admonishes  us  of  the  increasing  dangers  to  the  ashes  of  the 
dead  from  its  disturbing  movements.  Already,  in  other  cities,  the 
church-yards  are  closing  against  the  admission  of  new  incumbents, 
and  begin  to  exhibit  the  sad  spectacle  of  promiscuous  ruins  and 
intermingled  graves. 

We  are  therefore  but  anticipating,  at  the  present  moment,  the 
desires,  nay  the  necessities,  of  the  next  generation.  We  are  but 
exercising  a  decent  anxiety  to  secure  an  inviolable  home  for  our- 
selves and  our  posterity.  We  are  but  inviting  our  children  and 
their  descendants,  to  what  the  Moravian  Brothers  have,  with  such 
exquisite  propriety,  designated  as  "  The  Field  of  Peace." 

A  rural  cemetery  seems  to  combine  in  itself  all  the  advantages, 
which  can  be  proposed,  to  gratify  human  feelings,  or  tranquillize 
human  fears  ;  to  secure  the  best  religious  influences,  and  to  cherish 
all  those  associations,  which  cast  a  cheerful  light  over  the  darkness 
of  the  grave. 

And  what  spot  can  be  more  appropriate  than  this,  for  such  a 
purpose  ?  Nature  seems  to  point  it  out,  with  significant  energy,  as 
the  favorite  retirement  for  the  dead.  There  are  around  us  all  the 
varied  features  of  her  beauty  and  grandeur;  —  the  forest-crowned 
height ;  the  abrupt  acclivity  ;  the  sheltered  valley ;  the  deep 
glen  ;  the  grassy  glade  ;  and  the  silent  grove.  Here  are  the  lofty 
oak,  the  beach,  that  "  wreaths  its  old,  fantastic  roots  so  high,"  the 
rustling  pine,  and  the  drooping  willow  ;  —  the  tree,  that  sheds  its 
pale  leaves  with  every  autumn,  a  fit  emblem  of  our  own  transi- 
tory bloom  ;  and  the  evergcen,  with  its  perennial  shoots,  instructing 


ADDRESS  AT  THE  CONSECRATION  OF  MOUNT  AUBURN.     97 

us,  that  "  the  wintry  blast  of  death  kills  not  the  buds  of  virtue." 
Here  is  the  thick  shrubbery,  to  protect  and  conceal  the  new-made 
grave  ;  and  there  is  the  wild  (lower,  creeping  along  the  narrow  path, 
and  planting  its  seeds  in  the  upturned  earth.  All  around  us  there 
breathes  a  solemn  calm,  as  if  we  were  in  the  bosom  of  a  wilderness, 
broken  only  by  the  breeze,  as  it  murmurs  through  the  tops  of  the 
forest,  or  by  the  notes  of  the  warbler,  pouring  forth  his  matin  or  his 
evening  song. 

Ascend  but  a  few  steps,  and  what  a  change  of  scenery  to  surprise 
and  delight  us  !  We  seem,  as  it  were,  in  an  instant,  to  pass  from 
the  confines  of  death,  to  the  bright  and  balmy  regions  of  life.  Be- 
low us  flows  the  winding  Charles,  with  its  rippling  current,  like  the 
stream  of  time  hastening  to  the  ocean  of  eternity.  In  the  distance, 
the  city  —  at  once  the  object  of  our  admiration  and  our  love  — 
rears  its  proud  eminences,  its  glittering  spires,  its  lofty  towers,  its 
graceful  mansions,  its  curling  smoke,  its  crowded  haunts  of  business 
and  pleasure,  which  speak  to  the  eye,  and  yet  leave  a  noiseless 
loneliness  on  the  ear.  Again  we  turn,  and  the  walls  of  our  venera- 
ble University  rise  before  us,  with  many  a  recollection  of  happy 
days  passed  there  in  the  interchange  of  study  and  friendship,  and 
many  a  grateful  thought  of  the  affluence  of  its  learning,  which  has 
adorned  and  nourished  the  literature  of  our  country.  Again  we 
turn,  and  the  cultivated  farm,  the  neat  cottage,  the  village  church, 
the  sparkling  lake,  the  rich  valley,  and  the  distant  hills,  are  before 
us,  through  opening  vistas  ;  and  we  breathe  amidst  the  fresh  and 
varied  labors  of  man. 

There  is,  therefore,  within  our  reach,  every  variety  of  natural 
and  artificial  scenery,  which  is  fitted  to  awaken  emotions  of  the 
highest  and  most  affecting  character.  We  stand,  as  it  were,  upon 
the  borders  of  two  worlds ;  and,  as  the  mood  of  our  minds  may  be, 
we  may  gather  lessons  of  profound  wisdom  by  contrasting  the  one 
with  the  other,  or  indulge  in  the  dreams  of  hope  and  ambition,  or 
solace  our  hearts  by  melancholy  meditations. 

Who  is  there,  that,  in  the  contemplation  of  such  a  scene,  is  not 
ready  to  exclaim,  with  the  enthusiasm  of  the  poet, 

"  Mine  be  the  breezy  hill,  that  skirts  the  down, 

Where  a  green,  grassy  turf  is  all  I  crave, 
With  here  and  there  a  violet  bestrewn. 

Fast  by  a  brook,  or  fountain's  murmuring  wave  ; 

And  many  an  evening  sun  shine  sweetly  on  my  grave  "  ? 

And  we  are  met  here    to  consecrate  this  spot,  by  these  solemn 
ceremonies,  to  such  a  purpose.     The  Legislature  of  this  Common- 
13 


98  LITERARY    DISCOURSES. 

wealth,  with  a  parental  foresight,  has  clothed  the  Horticultural 
Society  with  authority  (if  I  may  use  its  own  language)  to  make  a 
perpetual  dedication  of  it,  as  a  Rural  Cemetery,  or  Burying-Ground, 
and  to  plant  and  embellish  it  with  shrubbery,  and  flowers,  and  trees, 
and  walks,  and  other  rural  ornaments.  And  I  stand  here,  by  the 
order  and  in  behalf  of  this  Society,  to  declare,  that,  by  these  ser- 
vices, it  is  to  be  deemed,  henceforth  and  for  ever,  so  dedicated. 
Mount  Auburn,  in  the  noblest  sense,  belongs  no  longer  to  the  liv- 
ing, but  to  the  dead.  It  is  a  sacred,  it  is  an  eternal  trust.  It  is 
consecrated  ground.     May  it  remain  for  ever  inviolate  ! 

What  a  multitude  of  thoughts  crowd  upon  the  mind,  in  the  con- 
templation of  such  a  scene  !  How  much  of  the  future,  even  in  its 
far  distant  reaches,  rises  before  us,  with  all  its  persuasive  realities  ! 
Take  but  one  little  narrow  space  of  time,  and  how  affecting  are  its 
associations  !  Within  the  flight  of  one  half  century,  how  many  of 
the  great,  the  good,  and  the  wise  will  be  gathered  here  !  How 
many,  in  the  loveliness  of  infancy,  the  beauty  of  youth,  the  vigor 
of  manhood,  and  the  maturity  of  age,  will  lie  down  here,  and  dwell 
in  the  bosom  of  their  mother  earth  !  The  rich  and  the  poor,  the 
gay  and  the  wretched,  the  favorites  of  thousands,  and  the  forsaken 
of  the  world,  the  stranger,  in  his  solitary  grave,  and  the  patriarch, 
surrounded  by  the  kindred  of  a  long  lineage  !  How  many  will 
here  bury  their  brightest  hopes,  or  blasted  expectations !  How 
many  bitter  tears  will  here  be  shed  !  How  many  agonizing  sighs 
will  here  be  heaved  !  How  many  trembling  feet  will  cross  the 
pathways,  and,  returning,  leave  behind  them  the  dearest  objects  of 
their  reverence  or  their  love  ! 

And  if  this  were  all,  sad,  indeed,  and  funereal  would  be  our 
thoughts  ;  gloomy,  indeed,  would  be  these  shades,  and  desolate 
these  prospects. 

But — thanks  be  to  God — the  evils,  which  he  permits,  have  their 
attendant  mercies,  and  are  blessings  in  disguise.  The  bruised  reed 
will  not  be  laid  utterly  prostrate.  The  wounded  heart  will  not 
always  bleed.  The  voice  of  consolation  will  spring  up  in  the  midst 
of  the  silence  of  these  regions  of  death.  The  mourner  will  revisit 
these  shades,  with  a  secret,  though  melancholy  pleasure.  The 
hand  of  friendship  will  delight  to  cherish  the  flowers  and  the  shrubs, 
that  fringe  the  lowly  grave,  or  the  sculptured  monument.  The 
earliest  beams  of  the  morning  will  play  upon  these  summits  with  a 
refreshing  cheerfulness  ;  and  the  lingering  tints  of  evening  hover  on 
them  with  a  tranquillizing  glow.     Spring  will  invite  hither  the  foot- 


ADDRESS  AT  THE  CONSECRATION  OF  MOUNT  AUBURN.     99 

steps  of  the  young  by  its  opening  foliage ;  and  Autumn  detain  the 
contemplative  by  its  latest  bloom.  The  votary  of  learning  and 
science  will  here  learn  to  elevate  his  genius  by  the  holiest  studies. 
The  devout  will  here  offer  up  the  silent  tribute  of  piety,  or  the 
prayer  of  gratitude.  The  rivalries  of  the  world  will  here  drop 
from  the  heart  ;  the  spirit  of  forgiveness  will  gather  new  impulses  ; 
the  selfishness  of  avarice  .will  be  checked  ;  the  restlessness  of  am- 
bition will  be  rebuked  ;  vanity  will  let  fall  its  plumes  ;  and  pride, 
as  it  sees  "  what  shadows  we  are,  and  what  shadows  we  pursue," 
will  acknowledge  the  value  of  virtue,  as  far,  immeasurably  far,  be- 
yond that  of  fame. 

But  that,  which  will  be  ever  present,  pervading  these  shades, 
like  the  noon-day  sun,  and  shedding  cheerfulness  around,  is  the 
consciousness,  the  irrepressible  consciousness,  amidst  all  these  les- 
sons of  human  mortality,  of  the  higher  truth,  that  we  are  beings, 
not  of  time,  but  of  eternity  ;  that  "  this  corruptible  must  put  on 
incorruption,  and  this  mortal  must  put  on  immortality  ;  "  that  this 
is  but  the  threshold  and  starting  point  of  an  existence,  compared 
with  whose  duration  the  ocean  is  but  as  a  drop,  nay  the  whole 
creation  an  evanescent  quantity. 

Let  us  banish,  then,  the  thought,  that  this  is  to  be  the  abode  of  a 
gloom,  which  will  haunt  the  imagination  by  its  terrors,  or  chill  the 
heart  by  its  solitude.  Let  us  cultivate  feelings  and  sentiments 
more  worthy  of  ourselves,  and  more  worthy  of  Christianity.  Here 
let  us  erect  the  memorials  of  our  love,  and  our  gratitude,  and  our 
glory.  Here  let  the  brave  repose,  who  have  died  in  the  cause  of 
their  country.  Here  let  the  statesman  rest,  who  has  achieved  the 
victories  of  peace,  not  less  renowned  than  war.  Here  let  genius 
find  a  home,  that  has  sung  immortal  strains,  or  has  instructed  with 
still  diviner  eloquence.  Here  let  learning  and  science,  the  votaries 
of  inventive  art,  and  the  teacher  of  the  philosophy  of  nature  come. 
Here  let  youth  and  beauty,  blighted  by  premature  decay,  drop,  like 
tender  blossoms,  into  the  virgin  earth ;  and  here  let  age  retire, 
ripened  for  the  harvest.  Above  all,  here  let  the  benefactors  of 
mankind,  the  good,  the  merciful,  the  meek,  the  pure  in  heart,  be 
congregated  ;  for  to  them  belongs  an  undying  praise.  And  let  us 
take  comfort,  nay,  let  us  rejoice,  that,  in  future  ages,  long  after  we 
are  gathered  to  the  generations  of  other  days,  thousands  of  kind- 
ling hearts  will  here  repeat  the  sublime  declaration,  "  Blessed  are 
the  dead,  that  die  in  the  Lord,  for  they  rest  from  their  labors  ;  and 
their  works  do  follow  them." 


DISCOURSE 

PRONOUNCED,    APRIL    5,    1833,    AT    THE     OBSEQUIES    OF  JOHN   HOOKER   ASH- 
MUN,  Esd.,  ROYALE  PROFESSOR  OF  LAW  IN  HARVARD  UxNIVERSITY. 


The  occasion,  which  has  brought  us  together,  is  full  of  melan- 
choly interest.  It  is  not,  that  it  is  new  ;  for  the  annals  of  time  are 
crowded  with  memorials  of  the  dead ;  with  repetitions  of  sorrows, 
which  know  no  end  ;  and  with  renewals  of  anguish,  which  contin- 
ually find  utterance  upon  the  departure  of  the  good,  the  wise,  and 
the  great.  It  is  not,  that  there  is  even  any  thing  unusual  in  the 
present  event,  or  beside  the  general  course  of  human  experience  ; 
for  when  has  the  time  been,  in  which  youth  and  manhood  have  not 
dropped  into  the  grave,  in  all  the  pride  of  their  power,  and  the 
affluence  of  their  hopes?  We  have  seen  the  aged  linger  on  to 
the  last  syllable  of  their  recorded  time ;  and  we  have  seen  the  bud 
of  beauty  nipped  and  withered,  in  the  first  faint  blushes  of  its  dawn. 
These  are  common  events ;  so  common,  indeed,  that  they  scarcely 
attract  more  than  a  transient  notice  ;  and,  so  that  they  strike  not 
within  our  own  immediate  circle  of  friends,  we  gaze  on  them,  for  a 
moment,  with  subdued  thoughtfulness,  and  then  press  on  to  our  own 
accustomed  duties ;  we  return  to  our  homes,  and  the  sadness  has 
passed  away  from  our  hearts. 

Such  is  human  life.  I  will  not  say,  such  is  human  infirmity. 
It  is,  doubtless,  in  the  wisdom  of  Providence,  that  it  should  be  so. 
If,  wTith  such  constantly  recurring  scenes  of  death  on  every  side, 
our  sympathy  should  always  hover  round  the  mourners ;  if  we 
should  partake  of  all  their  agonized  feelings,  and  dwell,  as  they 
dwell,  on  the  vanity  of  all  human  pursuits,  and  the  desolateness  of 
all  human  hopes  ;  if  we  should  take  counsel,  like  them,  only  from 
our  own  dark  meditations  upon  the  frail  tenure  of  our  existence, 
and  the  utter  worthlessness  of  every  thing  on  this  side  of  the 
grave ;  who  does  not  perceive,  that  we  should  be  unfit  for  all  the 


EULOGY    ON    PROFESSOR    ASHMUN.  101 

active  duties  of  life ;  that  we  should  be  absorbed  in  one  unchanging 
reverie  ;  that  our  affections  would  soon  be  exhausted,  or  extin- 
guished ;  that  our  families  and  friends  would  soon  cease  to  be  felt, 
as  the  exciting  source  of  our  highest  enjoyments  ;  and  that  we 
should  fly  to  forests  and  caverns,  to  impenetrable  shades,  and 
secret  recesses,  that  we  might  bury  ourselves  from  every  thing  but 
our  own  thoughts,  and  become  as  unfit  for  this  earth,  as  it  would 
then  seem  unfit  for  us  ? 

On  the  other  hand,  we  are  not  permitted  to  be  insensible  to  the 
dangers,  that  every  where  surround  us.  We  become  daily  touched 
with  the  sense  of  human  infirmity.  We  learn  the  salutary  lesson, 
that  Providence  has  allotted  to  each  of  us  his  own  sufferings ;  that 
there  is  no  exemption  of  age,  or  rank,  or  station  ;  and  that,  how- 
ever often  we  may  have  occasion  to  lift  our  souls  in  grateful  prayer 
for  past  blessings,  there  is  a  common  doom  appointed  for  all.  The 
stream  of  time  has  always  flowed  on,  and  ever  will  flow  on,  noise- 
less, but  irresistible,  to  the  ocean  of  eternity. 

Thoughts,  like  these,  if  rightly  improved,  have  a  natural  ten- 
dency to  make  us  wiser,  and  holier,  and  better.  They  enable  us 
to  feel,  as  it  were,  the  yet  distant  evils  ;  to  administer  to  the 
calamities  of  others  with  a  soothing  kindness ;  to  warm,  as  well  as 
to  exalt,  our  own  virtues ;  and  to  cherish  habitually  that  compas- 
sionate tenderness,  which,  when  the  day  of  our  own  visitation  shall 
arrive,  will  be  found  one  of  the  surest  sources  of  earthly  comfort. 
They  prepare  us  also  for  the  higher  consolations  of  religion  ;  for 
those  sublime  views  of  another  and  a  better  world,  which  Chris- 
tianity has  unfolded  with  such  inexpressible  glory,  —  "  When  this 
corruptible  shall  put  on  incorruption,  and  this  mortal  shall  put  on 
immortality." 

And  the  day  of  our  own  visitation  is  arrived.  Death  has 
entered  into  our  little  academical  circle,  and  struck  down  one  of  its 
choicest  ornaments  and  supports.  His  cold  and  lifeless  remains  are 
now  before  us.  We  are  gathered  in  this  consecrated  temple,  to 
perform  his  obsequies ;  to  devote  a  brief  space  to  the  recollection 
of  his  character  and  virtues ;  and  then  to  consign  these  perishable 
relics  to  the  home,  where  they  shall  rest,  until  that  hour,  when 

"  The  trumpet  shall  be  heard  on  high  ; 
The   dead  shall  live  —  the  living  die." 

I  feel,  my  friends,  how  utterly  inadequate  I  am,  under  such 
circumstances,  to  the  performance  of  the  task  assigned  me.  What 
can  I  say,  that  has  not  been  said  a  thousand  times  before  ?     What 


102  LITERARY    DISCOURSES. 

can  I  suggest,  which  has  not  already  suggested  itself  to  your  own 
hearts  in  a  more  touching  form,  and  with  a  more  homefelt  pathos? 
Alas!  the  language  of  bereavemenl  has  long  since  rung  out  all  its 
melancholy  changes.  The  mourners  have  daily  woven  anew  the 
texture  of  their  sorrows,  that  they  might  more  diligently  employ 
their  nightly  vigils  in  separating  the  threads,  and  moistening  each 
with  their  tears. 

It  has  been  said,  with  great  force  and  truth,  that 

"  Our  dying  friends  come  o'er  us  like  a  cloud, 
To  damp  our  brainless  ardors,  and  al 
That  glare  of  lift',  which  often  blinds  the  wise." 

But  they  often  subserve  another,  if  it  he  not  a  holier  purpose.  By 
severing  every  earthly  tie,  they  compel  us  to  rely  wholly  on  the 
past ;  to  treasure  up  in  our  memories  every  little  incident,  that  we 
may  be  enabled  to  preserve,  however  faintly,  some  faithful  resem- 
blance of  our  departed  friends.  We  are  thus  driven  back  to  trace 
out  every  striking  feature  of  their  minds  and  characters  ;  to  recall 
every  fleeting  association  ;  and  thus,  by  placing  the  lines  in  their 
due  order,  to  draw  out  a  softened  image  of  every  excellence,  until, 
at  length,  it  seems  to  breathe  with  the  warmth  and  freshness  of  life. 
Painful  as  is  the  first  effort,  the  very  employment  soon  becomes 
the  minister  of  good  ;  and,  like  an  angel  of  mercy,  it  comes  with 
healing  in  its  wings.  It  is  one  of  the  beautiful  illustrations  of  the 
compensatory  power  of  Providence,  that  sorrow  is  thus  enabled  to 
extraet  a  secret  cure  from  its  own  bitterest  meditations. 

And  may  1  not  say,  how  much  there  is  in  such  a  thought  pecu- 
culiarly  appropriate  to  the  present  occasion  ?  However  deep  may 
be  our  affliction  in  our  present  loss,  the  past  is  full  of  brightness, 
and  the  evening  shuts  not  down  in  a  settled  and  appalling  gloom. 
We  can  look  back  upon  the  life  of  our  departed  friend  with  an 
approving  consciousness.  We  can  see  much  to  love,  admire,  and 
reverence  in  his  character  ;  and  nothing  to  awaken  regret  for  error, 
or  apology  for  frailty.  Such  as  he  was,  we  can  bear  him  in  our 
hearts  and  on  our  lips  with  a  manly  praise.  We  can  hold  him  up 
as  a  fit  example  for  youthful  emulation  and  ambition  ;  not  dazzling, 
but  elevated  ;  not  stately,  but  solid  ;  not  ostentatious,  hut  pure. 

Of  his  life  tin  re  arc  hut  few  incidents,  and  these  may  be  briefly 
told  ;  for  in  a  life  not  long,  but  uniform  and  consistent,  filled  up  in 
the  regular  discharge  of  duty,  and  in  the  quiet  occupations  o(  a 
profession,  little  will  be  found  to  attract  notice,  or  invite  curiosity. 
He,  who  has  marked  out  for  himself  a  course  of  habitual  diligence 


EULOGY    ON    PROFESSOR    ASHMUN.  103 

and  virtue ;  who  has  no  ambition,  except  for  wisdom,  and  no  love 
of  power,  that  he  may  reap  the  ordinary  rewards  of  popular  favor ; 
even  if  he  does  not  pass  his  days  along  the  sequestered  paths  of 
life  with  a  noiseless  tenor,  has  little  to  engage  the  vulgar  gaze,  and 
can  furnish  no  eccentricities  to  gratify  the  idle,  and  no  follies  to 
console  the  indolent.  Such  a  man  addresses  himself  to  higher 
objects  and  more  enduring  aims.  He  seeks  to  be  what  he  ought ; 
and  is  not  content  to  dream  on  through  life,  the  shadow  of  great- 
ness, or  the  finger-point  of  scorn. 

Our  departed  friend,  John  Hooker  Ashmun,  was  born  in  Bland- 
ford,  in  Massachusetts,  on  the  third  day  of  July,  1800.  His  father 
was  the  Honorable  Eli  P.  Ashmun,  a  distinguished  lawyer  of  the 
Hampshire  bar,  who  for  several  years  represented  that  county 
in  our  State  Senate,  and  afterwards  represented  this  Common- 
wealth in  the  Senate  of  the  United  States.  It  was  my  good  for- 
tune to  know  him  in  the  latter  station,  which  he  filled  with  great 
dignity,  ability,  and  public  respect.  He  retired  voluntarily  from 
public  life,  either  from  a  superior  attachment  to  his  profession,  or 
from  ill  health,  and  died  about  the  year  1819.  His  mother  was 
the  daughter  of  the  Reverend  John  Hooker,  a  distinguished  cler- 
gyman of  Northampton,  from  whom  he  derived  his  name.  His 
mother  died  when  he  was  quite  young ;  so  that  he  early  lost  that 
maternal  care,  which  is  always  deeply  felt,  and  is  so  generally  irre- 
parable;  though  it  was  in  his  case  fortunately  supplied  by  another, 
towards  whom  he  entertained,  during  his  whole  life,  a  very  tender 
regard.  At  an  early  age  he  was  put  under  the  instruction  of  a 
Mr.  Grosvener,  who  kept  a  private  school  at  Northampton,  with 
whom  he  made  such  proficiency,  that  at  nine  years  of  age  he  was 
deemed  an  extraordinary  Latin  scholar.  He  was  afterwards  re- 
moved to  Blandford,  and  was  there  fitted  for  college  by  the  Rev. 
Mr.  Keep  of  that  town.  At  the  age  of  twelve  he  was  deemed 
well  qualified  to  enter  upon  the  usual  collegiate  studies  ;  but  he 
was  kept  back  until  the  succeeding  year  by  the  prudence  of  his 
father.  He  was  then  matriculated,  and  remained  three  years 
at  Williamstown  College  ;  and  then  joined  the  Junior  Class  in 
Harvard  University,  and  took  his  first  degree  at  the  annual 
commencement  in  the  year  1818.  During  his  residence  at  this 
University  he  does  not  appear  to  have  exerted  himself  with  any 
uncommon  ardor  in  his  studies.  His  own  account  ol  the  matter 
seems  to  have  been,  that,  though  the  labors  required  of  him  would 
not  have  cost  him  much  effort,  he  had  little  relish  for  them  ;  and 


104  LITERARY    DISCOURSES. 

his  extreme  youth  rendered  them  less  attractive  and  less  instructive 
than  they  would  otherwise  have  heen  ;  so  that  much  of  his  time 
passed  without  any  correspondent  improvement,  except  in  the 
department  of  mathematics.  It  is  not  improhable,  too,  that, 
entering  at  an  advanced  standing,  he  did  not  easily  acquire  that 
intimacy  with  his  classmates,  which  was  calculated  to  nourish  his 
ambition  ;  and  that  he  felt  something  of  that  estrangement,  which 
rarely  fails  to  be  the  accompaniment  of  young  persons,  engaging  in 
new  studies  with  those,  who  have  already  caught,  as  it  were,  the 
genius  and  inspiration  of  the  place,  by  an  earlier  union  in  common 
pursuits. 

As  soon  as  he  was  graduated,  he  entered  upon  the  study  of  the 
law,  in  the  office  of  his  father  ;  whom,  however,  he  had  the  mis- 
fortune, soon  afterwards,  to  lose  ;  and  he  then  completed  his  studies 
under  the  care  of  the  Honorable  Lewis  Strong,  of  Northampton. 
It  was  about  this  period,  that  he  became  intimately  acquainted  with 
the  late  Judge  Howe,  then  a  resident  in  the  same  town,  whose 
very  high  professional  attainments  and  untimely  death  are  yet  fresh 
in  the  memory  of  all  of  us.  In  due  time  he  was  admitted  to  the 
bar ;  and  henceforth  he  devoted  himself,  with  intense  zeal  and 
strenuous  industry,  to  the  noble  science  of  the  Law,  —  his  favorite, 
and,  I  had  almost  said,  his  all-absorbing  study.  His  career  was  soon 
marked  by  deserved  success ;  and  before  he  left  the  bar,  at  which 
he  was  then  accustomed  to  practise,  he  stood  in  the  very  first  rank 
of  his  profession,  without  any  acknowledged  superior.  It  is  well 
known,  that  Judge  Howe  had  established  a  Law  School,  at  North- 
ampton, of  very  high  character  ;  and,  during  the  last  year  of  his  life, 
Mr.  Ashmun,  although  quite  young,  was  associated  in  his  labors  ; 
and,  on  his  decease,  in  connexion  with  that  accomplished  statesman 
and  jurist,  the  late  Mr.  Mills,  he  continued  the  establishment  with 
unabated  celebrity  and  success.  In  fact,  from  the  ill  health  of  Mr. 
Mills,  the  principal  instruction  in  the  School  devolved  almost  en- 
tirely on  Mr.  Ashmun;  and,  with  his  characteristic  vigor,  he  rose 
in  energy,  as  the  pressure  demanded  more  various  and  exhausting 
labors. 

Upon  the  reorganization  of  the  Law  Institution  in  this  University, 
in  the  year  1829,  Mr.  Ashmun  was  invited,  by  the  unanimous  vote 
of  the  Corporation,  to  the  chair  of  the  Royall  Professorship  of  Law. 
This  tribute  to  his  extraordinary  merit  occurred  under  circumstances, 
as  gratifying  as  any,  which  could  well  attend  any  similar  appoint- 
ment.    The  office  was  not  only  unsought  on   his  own   part,  but 


EULOGY    ON    PROFESSOR    ASHMUN.  105 

it  was  wholly  unexpected.  It  was  a  spontaneous  movement  of  the 
Corporation  itself,  acting  on  its  own  responsibility,  upon  a  deliberate 
review  of  his  qualifications,  and  after  the  most  searching  inquiry 
into  the  solidity  of  his  reputation.  The  choice  was  fully  justified 
by  the  event.  The  honors  of  the  University  were  never  more 
worthily  bestowed,  never  more  meekly  worn,  and  never  more 
steadily  brightened.  He  remained  in  the  conscientious  discharge 
of  the  arduous  duties  of  this  station  with  an  unfaltering  fidelity  to 
the  last.  He  might  almost  be  said  to  have  died  with  his  profes- 
sional armor  on  him.  Scarcely  a  fortnight  is  now  elapsed,  since 
his  voice  was  heard  in  the  forum,  mastering  a  case  of  no  inconsid- 
erable nicety  and  importance  ;  and  only  on  the  day  before  his  death, 
he  was  meditating  new  labors,  and  laying  before  me  the  scheme  of 
our  future  juridical  instructions. 

I  need  hardly  say,  in  this  place,  with  what  distinguished  ability 
he  filled  the  professor's  chair.  His  method  of  instruction  was 
searching  and  exact.  It  disciplined,  while  it  awakened  the  mind. 
It  compelled  the  pupil  to  exert  his  own  powers  ;  but  it  brought 
with  it  the  conscious  rewards  of  the  labor.  His  explanations  were 
always  clear,  and  forcible,  and  satisfactory.  Although  his  learning 
was  exceedingly  various,  as  well  as  deep,  he  never  assumed  the 
air  of  authority.  On  the  contrary,  whenever  a  question  occurred, 
which  he  was  not  ready  to  answer,  he  had  no  reserves  and  no  con- 
cealments. With  the  modesty,  as  w:ell  as  the  tranquil  confidence, 
of  a  great  mind,  he  would  candidly  say,  "  I  am  not  lawyer  enough 
to  answer  that."  In  truth,  his  very  doubts,  like  the  doubts  of 
Lord  Eldon,  and  the  queries  of  Plowden,  let  you  at  once  into  the 
vast  reach  of  his  inquiries  and  attainments.  There  is  not,  and 
there  cannot  be,  a  higher  tribute  to  his  memory  than  this,  that, 
while  his  scrutiny  was  severely  close,  he  was  most  cordially  beloved 
by  all  his  pupils.  He  lived  with  them  upon  terms  of  the  most 
familiar  intimacy ;  and  he  has  sometimes,  with  a  delightful  modesty 
and  elegance,  said  to  me,  "  I  am  but^the  eldest  boy  upon  the  form." 

He  had  for  more  than  eight  years  been  in  a  state  of  declining 
health,  the  victim  of  a  constitutional  disease,  slow  and  silent  in  its 
approaches,  which  deluded  our  hopes,  and  lulled  our  fears,  and  was 
most  insidious  in  the  very  hours,  in  which  it  moved  the  heart  with 
unusual  cheerfulness.  It  may  be  truly  said,  in  the  language  of  one 
of  the  most  eloquent  of  modern  statesmen  on  a  similar  occasion, 
that  it  pleased  the  Almighty  "  to  make  his  shortened  span  one  long 
14 


106  LITERARY    DISCOURSES. 

disease."  *  No  man  could  have  resisted  it  with  a  more  firm  yet 
gentle  spirit.  He  saw  the  danger  without  dismay,  and  struggled 
to  meet  and  overcome  it.  Whatever  medical  skill  could  bring  to 
his  aid,  to  alleviate,  or  subdue  it,  was  faithfully  administered. 
\\  ill: o li t  being  confident,  that  he  should  triumph  over  this  consti- 
tutional infirmity,  he  seemed  constantly  encouraged  by  the  con- 
sciousness, that  it  was  worth  the  trial.  No  man  ever  bore  himself, 
through  every  change  of  its  aspect,  with  a  more  uncomplaining 
moderation,  or  more  unshrinking  fortitude.  He  sought  conceal- 
ment of  his  sufferings ;  and  was  even  sensitive  to  inquiries  on  the 
subject.  He  buried  in  his  own  bosom  both  his  hopes  and  his  fears; 
and  seemed,  most  of  all,  anxious  to  avoid  giving  trouble  and  in- 
convenience to  others.  There  were  periods,  when  the  disease 
seemed,  in  a  great  measure,  to  have  lost  its  potency  ;  and  there  were 
other  periods,  in  which  it  seemed  to  move  on,  with  a  hurried  pro- 
cess, to  an  immediate  catastrophe.  Yet  in  every  vicissitude  the 
same  imperturbable  resolution  and  the  same  unrepining  calmness 
marked  his  conduct.  His  intellectual  energy  seemed  rather  height- 
ened, than  impaired,  by  the  gradual  diminution  of  his  physical 
strength.  Its  activity  seemed  to  furnish  a  salutary  stimulus,  if  it  did 
not  administer  a  necessary  aliment  to  his  existence.  I  have  some- 
times been  led  to  doubt,  whether,  if  he  had  had  less  professional 
excitement,  he  would  not  earlier  have  fallen  a  victim. 

Although,  for  the  few  last  days,  it  was  obvious  to  those  of  us, 
who  had  most  intercourse  with  him,  that  he  could  not  live  many 
weeks,  or,  at  most,  many  months ;  yet  the  actual  occurrence  his 
death  was  a  calamity  so  sudden  and  startling,  that  all  his  friends 
were  awakened,  as  it  were,  from  a  dreadful  dream.  He  was  him- 
self without  the  slightest  suspicion  of  the  impending  event.  He 
sought  repose  at  the  usual  hour  on  Sunday  evening,  being  for  the 
first  time  watched  by  the  care  of  an  interesting  friend,  without  any 
wish  expressed  on  his  own  part.  He  retained  his  senses  almost  to 
the  last ;  and  sank  away  in  a  gentle,  child-like  sleep,  without  the 
smallest  struggle,  and  almost  without  observation.  At  the  very 
moment  when  he  was  breathing  his  last  breath,  the  first  beams  of 
the  morning  were  beginning  to  blend  their  beautiful  and  softened 
lights.  His  spirit,  as  it  bore  itself  away  from  the  earth,  seemed 
almost  to  whisper  in  our  ears  the  affecting  aspiration  of  the  Psalmist, 


The  Right  Honorable  George  Canning's  Epitaph  on  hi*  eldest  son. 


EULOGY    ON    PROFESSOR    ASHMUN.  107 

"  Oh !  that  I  had  wings  like  a  dove  ;  for  then  would  I  flee  away, 
and  he  at  rest."* 

Such  is  the  simple  narrative  of  the  life  of  Mr.  Ashmun,  and  such 
the  enviable  felicity  of  his  death.  Yet,  brief  as  was  his  career, 
there  was  much  in  it  calculated  to  awaken  our  admiration,  as  well 
as  to  engage  our  affections.  Few  nun  have  impressed  upon  the 
memory  of  their  friends  a  livelier  sense  of  excellence  and  unsullied 
virtue.  Fewer  have  left  behind  them  a  character  so  significant 
in  its  outlines,  and  so  well  fitted  to  sustain  an  enduring  fame. 

My  own  acquaintance  with  him  commenced  only  with  his  resi- 
dence in  Cambridge.  But  ever  since  that  period  I  have  counted 
it  among  my  chief  pleasures  to  cultivate  his  friendship,  and  justify 
his  confidence.  Engaged  as  we  have  been,  in  kindred  pursuits  and 
duties,  it  has  been  almost  of  course,  that  our  intercourse  should  be 
frank,  as  well  as  frequent ;  and  I  feel  a  pride  in  declaring,  that 
we  have  worked  hand  in  hand  witli  the  most  cordial  fellowship, 
and  with  a  union  of  opinion,  which  nothing  but  the  strongest  mutual 
attachment  could  have  successfully  cherished.  I  can,  therefore, 
with  all  sincerity  of  heart,  join  the  general  voice  of  his  afflicted  rela- 
tives and  friends,  in  bearing  testimony  to  his  rare  endowments  and 
exalted  merits. 

In  the  private  and  domestic  circle  he  was  greatly  beloved,  as  well 
as  respected.  He  was  confiding  and  affectionate ;  and,  as  an  elder 
son,  occupying  the  place  of  a  parent,  he  indulged  a  truly  paternal 
kindness  towards  the  younger  branches  of  the  family,  mixed  up 
with  the  eager  solicitude  and  sympathy  of  a  brother.  In  his  feel- 
ings he  possessed  an  enlightened  benevolence,  and  a  warm  sen- 
sibility :  and  was  gratified  by  an  opportunity  to  advance  those,  who 
were  within  the  sphere  of  his  influence.  He  was  a  man  of  the 
most  inflexible  honor  and  integrity,  a  devout  lover  of  truth,  consci- 
entiously scrupulous  in  the  discharge  of  his  duties,  and  constantly 
elevating  the  standard  of  his  own  virtue.  His  candor  was  as 
marked,  as  his  sense  of  justice  was  acute  and  vivid.  He  held  in 
utter  contempt  that  low  and  grovelling  spirit,  which  contented  itself 
wiih  common  observances,  so  as  not  to  offend  against  the  established 
decencies  of  life;  which  was  sordid,  as  far  as  it  dared  ;  and  mean, 
as  far  as  it  was  safe.  And  yet  the  voice  of  censure  rarely  escaped 
from  his  lips;  and  he  seemed  solicitous  to  moderate  the  language 
of  the  sentence,  even  when  truth  demanded  that  he  should  not 


!    Mr.  Ashmun  died  on  Monday  morning,  the  first  day  of  April,  1833. 


108  LITERARY    DISCOURSES. 

withhold  it.    He  habitually  softened  the  lineaments  of  the  portraits, 
which  he  had  no  wish  to  gaze  on,  or  to  sketch. 

He  had  also,  as  might  easily  be  gathered  from  what  has  been 
already  said,  a  deep  sense  of  the  value  and  importance  of  religion  ; 
though,  from  his  ill  health,  he  was  of  late  years  compelled  to  abstain 
a  good  deal  from  its  public  solemnities.  In  his  opinions  he  was 
unequivocally  a  Unitarian,  without  the  slightest  propensity  to 
proselytism  or  bigotry.  His  great  aim  was  to  be  good,  and  not 
merely  to  seem  so.  He  had  a  profound  feeling  of  his  responsible- 
ness  to  God  for  all  his  actions,  and  clung  with  devout  reverence  to 
the  doctrines  of  life  and  immortality,  as  revealed  in  the  gospel. 
His  opinions  on  these  subjects  were  not  built  upon  transitory  emo- 
tions ;  but  they  grew  up  and  mingled  with  all  his  thoughts,  and 
gave  to  them  a  peculiar  transparency  and  force.  They  imparted  a 
serenity  and  confidence,  which  may  be  truly  enumerated,  as  among 
the  choicest  of  human  blessings. 

In  his  general  deportment,  he  was  modest  and  reserved,  less 
desirous  to  please  than  his  high  powers  would  have  justified,  and 
never  eager  either  for  contest  or  victory.  On  this  account,  as  well 
as  on  account  of  his  thoughtful  aspect,  he  was  often  supposed,  on 
the  first  approaches,  to  be  cold  or  indifferent,  having  little  relish  for 
social  scenes  and  the  lighter  pleasures  of  life.  This  was  far  from 
being  true  ;  for  among  those  with  whom  he  was  intimate,  no  man 
was  more  social  in  his  temper,  more  indulgent  in  playful  and  deli- 
cate humor,  or  more  familiar  in  easy  conversation.  His  abstinence 
from  general  society  was  partly  from  choice,  and  partly  from  duty. 
Besides  ill  health,  he  felt  another  disadvantage  from  the  infirmity 
of  a  slight  deafness,  with  which  he  had  been  long  afflicted.  Time, 
also,  was  to  him  inestimable.  It  was  a  prize,  not  to  be  thrown 
away,  but  to  be  employed  in  intellectual  advancement,  in  widening 
and  deepening  the  foundations  of  his  constantly  accumulating 
knowledge.  Though  he  read  much,  he  thought  still  more  ;  and 
there  was  a  freshness  in  all  his  views,  which  stamped  them  at  once 
with  the  impress  of  originality. 

But  it  is  chiefly  in  a  professional  point  of  view,  that  he  should 
be  remembered  in  this  place,  as  at  once  an  ornament  to  be  hon- 
ored, and  an  example  to  be  followed.  If  we  look  at  his  years,  it 
seems  almost  incredible,  that  he  should  have  attained  so  high  a 
distinction  in  so  short  a  period.  Let  it  be  recollected,  that  he  died 
before  he  had  attained  the  age  of  thirty-three  ;  and  that  he  had 
then  gathered  about  him  all  the  honors,  which  are  usually  the 
harvest  of  the  ripest  life. 


EULOGY    ON    PROFESSOR    ASHMUN.  109 

The  law  is  a  science  of  such  vast  extent  and  intricacy,  of  such 
severe  logic  and  nice  dependencies,  that  it  has  always  tasked  the 
highest  minds  to  reach  even  its  ordinary  boundaries.  But  eminence 
in  it  can  never  be  attained  without  the  most  laborious  study,  united 
with  talents  of  a  superior  order.  There  is  no  royal  road  to  guide 
us  through  its  labyrinths.  They  are  to  be  penetrated  by  skill,  and 
mastered  by  a  frequent  survey  of  landmarks.  It  has  almost  passed 
into  a  proverb,  that  the  lucubrations  of  twenty  years  will  do  little 
more  than  conduct  us  to  the  vestibule  of  the  temple  ;  and  an  equal 
period  may  well  be  devoted  to  exploring  the  recesses.  What, 
then,  shall  we  think  of  a  man,  who  in  ten  years  had  elevated  him- 
self to  the  foremost  rank,  and  laid  the  foundations  of  deep,  various, 
and  accurate  learning  ?  What  shall  we  think  of  a  man,  who,  at 
that  early  period,  was  thought  as  worthy,  as  any  one  in  the  profes- 
sion, to  fill  the  chair  just  vacated  by  the  highest  judicial  officer  of 
the  Commonwealth,  in  the  full  vigor  of  his  own  well  earned  fame  ? 

There  were  yet  difficulties  to  be  overcome  in  the  case  of  Mr. 
Ashmun,  which  bring  out  in  stronger  relief  the  traits  of  his  profes- 
sional character,  and  invest  it  with  a  peculiar  charm  and  dignity. 
He  was  defective  in  some  of  the  most  engaging  and  attractive 
accomplishments  of  the  bar.  Owing  to  ill  health,  he  could  not  be 
said  to  have  attained  either  grace  of  person,  or  ease  of  action. 
His  voice  wras  feeble  ;  his  utterance,  though  clear,  was  labored  ; 
and  his  manner,  though  appropriate,  was  not  inviting.  He  could 
not  be  said  to  possess  the  higher  attributes  of  oratory,  copiousness 
and  warmth  of  diction,  persuasiveness  of  address,  a  kindling  imagi- 
nation, the  scintillations  of  wit,  or  the  thrilling  pathos  which  appeals 
to  the  passions.  Yet  he  was  always  listened  to  with  the  most 
profound  respect  and  attention.  He  convinced,  where  others  sought 
but  to  persuade ;  he  bore  along  the  court  and  the  jury  by  the  force 
of  his  argument ;  he  grappled  with  their  minds,  and  bound  them 
down  with  those  strong  ligaments  of  the  lav;,  which  may  not  be 
broken,  and  cannot  be  loosened.  In  short,  he  often  obtained  a 
triumph,  where  mere  eloquence  must  have  failed.  His  conscien- 
tious earnestness  commanded  confidence,  and  his  powerful  expos- 
tulations secured  the  passes  to  victory.  It  has  been  said,  and  I 
doubt  not  with  entire  correctness,  that,  in  the  three  interior  counties 
of  the  state,  to  which  his  practice  extended,  he  was,  during  the 
last  years  of  his  professional  residence,  engaged  on  one  side  of  every 
important  cause.  Certain  it  is,  that  no  man  of  his  years  was  ever 
listened  to  with  more  undivided  attention  by  the  court  and  bar,  or 


110  LITERARY    DISCOURSES. 

received  from  them  more  unsolicited  approbation.  If,  to  the  cir- 
cumstances, already  alluded  to,  we  add  his  ill  health  and  deafness, 
his  professional  success  seems  truly  marvellous.  It  is  as  proud  an 
example  of  genius  subduing  to  its  own  purposes  every  obstacle, 
opposed  to  its  career,  and  working  out  its  own  lofty  destiny,  as 
could  well  be  presented  to  the  notice  of  any  ingenuous  youth.  It 
is  as  tine  a  demonstration,  as  we  could  desire,  of  that  great  moral 
truth,  that  man  is  far  less  what  nature  has  originally  made  him, 
than  what  he  chooses  to  make  himself. 

If  I  were  called  upon   to  declare,  what  were  the   most  charac- 
teristic features  of  his  mind,  1  should  say  they  were  sagacity,  per- 
spicacity, and  strength.     His  mind  was   rather   solid  than  brilliant  ; 
rather  active   than   imaginative;    rather  acute  in  comparing   than 
fertile  in  invention.     He  was  not  a  rapid,  but  a  close  thinker  ;  not 
an  ardent,  but  an  exact  reasoner ;  not  a  generalizing,  but  a  concen- 
trating  speaker.     He   always  studied   brevity   and   significance   of 
expression.     And  hence   his  remarks  were  peculiarly  sententious, 
terse,  and  pithy  ;  and  sometimes  quite  epigrammatic.    He  indulged 
little  in  metaphors  ;  but  when  used,  they   were   always  direct,  and 
full  of  meaning.     Few  persons  have  left  upon  the  minds  of  those, 
who  have  heard   them,  so  many   striking  thoughts,   uttered  with  so 
much  proverbial  point,  and  such  winning  simplicity.    They  adhered 
to  the  memory  in  spite  of  every  effort  to  banish  them.     They  were 
philosophy  brought  down  to  the   business  of  human   life,  and  disci- 
plined for  its  daily  purposes.    He  possessed,  in  a  remarkable  degree, 
the  faculty  of  analyzing  a  complicated  case   into  its  elements,  and 
of  throwing  out  at  once  all  its  accidental   and  unimportant  ingre- 
dients.     He  easily  separated  the  gold  from   the  dross,  and  refined 
and  polished  the  former  with  an  excpiisite  skill.      He  rarely  ampli- 
fied by  illustrations  ;   hut  poured  at  once  on  the  points  of  his  cause 
a  stead}'  and  luminous  stream  of  argument.      In   short,  the  prevail- 
ing character  of  his  mind  was  judgment,  arranging  all  its  materials 
in  a  lucid  order,  moulding  them  with  a  masterly  power,  and  closing 
the   results  with   an   impregnable   array   of  logic. 

I  had  almost  forgotten  to  add,  that  when,  about  a  year  a<j;o,  the 
legislature  of  this  Commonwealth  authorized  the  formation  of  a  new 
code  of  our  laws,  he  was  selected,  in  connexion  wit!)  two  of  our  most 
distinguished  jurists,  to  give  it  its  appropriate  form  and  body.  To 
such  a  task,  what  rare  qualifications  must  be  brought  !  If  I  have  but 
succeeded  in  impressing  upon  others  my  own  deep  sense  of  his 
capacity  for  the  task,  who  is  there,  that  will  nol  join  me  in  lament- 
in'.:  his  death,  as  a  public  calamity  ? 


EULOGY    ON    PROFESSOR    ASHMUN.  I  I  I 

I  must  close  these  hasty  sketches,  thrown  together  in  the  raidts 
of  various  cares,  and  with  the  languor  of  a  drooping  spirit.  And 
yet  I  would  not  close  them  in  the  language  even  of  gloom,  and  far 
less  of  discontent.  In  the  natural  course  of  events,  indeed,  the 
thoughi  might  have  been  indulged,  thai  out  respective  places  would 
be  changed  ;  and  that  lie  might  he  called  apon,  at  some  future  time, 
to  perform  a  kindred  office  for  one,  who  had  cherished  his  friend- 
ship, and  partaken  of  his  labors.  To  Providence  it  has  seemed  (it 
to  order  otherwise.  Nor  can  we  justly  mourn  over  the  loss  of  such 
a  man,  as  those  who  are  without  hope  or  consolation.  Thanks  he 
to  God,  in  the  midst  of  our  sorrows  there  yet  spring  up  in  our 
hearts  the  most  soothing  recollections,  and  the  most  sublime  con- 
templations. He  is  but  removed  before  us  to  a  more  exalted  state 
of  being,  immortal  and  unchangeable.  We  have  nothing  to  reoret 
but  for  ourselves.  The  tears,  that  fall  upon  his  grave,  are  unstained 
by  any  mixture  of  bitterness  for  frailty,  or  for  vice.  The  cirele  of 
his  life  was  not  large,  but  it  was  complete.  If  he  had  lived  longer, 
he  might  have  reared  more  enduring  monuments  of  fame  for  pos- 
terity ;  but  his  virtues  could  not  have  been  more  mature,  or  more 
endeared.  They  are  now  beyond  the  reach  of  accident,  or  ques- 
tion. They  are  treasured  up  among  the  records  of  eternity.  He 
lived,  as  a  wise  man  would  aspire  to  live.  He  died,  as  a  good  man 
would  desire  to  die.  Well  may  we  exclaim  :  "  How  beautiful  is 
death,  when  earned  by  virtue  !  " 


DISCOURSE 


DELIVERED  BEFORE  THE  BOSTON  MECHANICS'  INSTITUTE,  AT  THE  OPENING 
OF  THEIR  ANNUAL  COURSE  OF  LECTURES,  NOVEMBER,  1829. 


Much  has  been  said  respecting  the  spirit  of  our  age,  and  the 
improvements,  by  which  it  is  characterized.  Many  learned  discus- 
sions have  been  presented  to  the  public,  with  a  view  to  illustrate 
this  topic  ;  to  open  the  nature  and  extent  of  our  attainments  ;  to 
contrast  them  with  those  of  former  times ;  and  thus  to  vindicate, 
nay  more,  to  demonstrate,  our  superiority  over  all  our  predecessors, 
if  not  in  genius,  at  least  in  the  perfection  and  variety  of  its  fruits. 
There  is,  doubtless,  much  in  such  a  review  to  gratify  our  pride, 
national,  professional,  and  personal.  But  its  value  in  this  respect, 
if  we  stop  here,  is  but  of  doubtful,  or,  at  most,  of  subordinate  impor- 
tance. It  is  not  the  sum  of  our  attainments,  but  the  actual  au«men- 
tation  of  human  happiness  and  human  virtue  thereby,  of  which 
we  may  justly  be  proud.  If  every  new  acquisition  operates,  as  a 
moving  spirit  upon  the  still  depths  of  our  minds,  to  awaken  new 
enterprise  and  activity,  to  warm  our  hearts  to  new  affection  and 
kindness  to  our  race,  and  to  enable  us  to  add  something  to  the 
capital  stock  of  human  enjoyment,  we  may  well  indulge  in  self- 
congratulation.  It  has  been  said,  that  he,  who  makes  two  blades 
of  grass  grow,  where  only  one  grew  before,  deserves  to  be  reckoned 
among  the  benefactors  of  mankind.  And  it  has  been  justly  said ; 
because  he  has  added  so  much  means  to  the  support  of  life,  and 
thus  promoted  the  effective  power  and  prosperity  of  the  whole 
community.  The  true  test  of  the  value  of  all  attainments  is  their 
real  utility. 

I  do  not  mean  by  this  remark  to  suggest,  that  nothing  is  to  be 
esteemed  valuable,  except  its  utility  can  be  traced  directly  home  to 
some  immediate  benefit,  in  visible  operation,  as  an  effect  from  a 
cause.      Far  otherwise.     There   are   many   employments,   whose 


DISCOURSE    BEFORE    THE    MECHANICS'    INSTITUTE.  113 

chief  object  seems  little  connected  with  any  great  ultimate  benefit, 
which  yet  administer  widely,  though  indirectly,  to  the  substantial 
good  of  society.  There  are  many  studies,  which  seem  remote 
from  any  direct  utility,  which  yet,  like  the  thousand  hidden  springs, 
which  form  the  sources  and  streams  of  rivers,  pour  in  their  contribu- 
tions to  augment  the  constantly  increasing  current  of  public  wealth 
and  happiness.  We  must  not,  therefore,  when  we  examine  an 
art,  or  an  invention,  a  book,  or  a  building,  a  study,  or  a  curiosity, 
measure  its  value  by  a  narrow  rule.  We  must  not  ask  ourselves, 
whether  we  could  do  without  it ;  whether  it  be  indispensable  to  our 
wants  ;  or,  whether,  though  missed,  it  could  yet  be  spared.  But  the 
true  question  in  such  cases  ought  to  be,  whether,  in  the  actual  struc- 
ture of  society,  it  gratifies  a  reasonable  desire,  imparts  an  innocent 
pleasure,  strengthens  a  moral  feeling,  elevates  a  single  virtue,  or 
chastens  or  refines  the  varied  intercourse  of  life.  If  it  does,  it  is 
still  useful  in  the  truest  sense  of  the  term,  although  it  may  not  seem 
directly  to  feed  the  hungry,  cure  the  sick,  administer  consolation  to 
the  afflicted,  or  even  remove  the  irksome  doubt  of  a  poor  litigant, 
groping  blindfold  through  the  dark  passages  of  the  law. 

It  is  not  easy,  indeed,  to  name  many  pursuits,  of  which  the 
inutility  is  so  clearly  made  out,  that  they  may  be  parted  with  with- 
out regret,  or  without  disturbing  the  good  order  and  arrangements 
of  society.  Some,  that  at  a  short  sight  seem,  if  not  frivolous,  at 
least  unnecessary,  to  men  of  narrow  capacities,  will  be  found,  on  a 
larger  survey,  to  be  connected  with  the  most  important  interests. 
The  fine  arts,  for  instance,  painting,  music,  poetry,  sculpture,  archi- 
tecture, seem  almost  the  necessary  accompaniments  of  a  state  of 
high  civilization.  They  are  not  only  the  grace  and  ornament  of 
society,  but  they  are  intimately  connected  with  its  solid  comforts. 
If  they  did  no  more  than  gratify  our  taste,  increase  our  circle  of 
innocent  enjoyment,  warm  our  imaginations,  or  refine  our  feelings, 
they  might  fairly  be  deemed  public  blessings.  But  who  is  so  care- 
less, as  not  to  perceive,  that  they  not  only  give  encouragement  to 
men  of  genius,  but  employment  to  whole  classes  in  the  subordinate 
arts  ?  They  not  only  create  a  demand  for  labor ;  but  make  that 
very  labor  a  means  of  subsistence  to  many,  who  must  otherwise  be 
idle  and  indolent,  or,  by  pressing  upon  other  business,  sink  the  com- 
pensation for  labor,  by  a  ruinous  competition,  to  its  minimum  price. 
How  many  thousands  are  employed  upon  a  single  block  of  marble, 
before,  under  the  forming  hand  of  the  artist,  it  breathes  in  sculp- 
tured life  !  before  it  meets  us  in  the  surpassing  beauty  of  a  Venus, 
15 


114  LITERARY    DISCOURSES. 

or  the  startling  indignation  of  an  Apollo?  Our  granite  would  have 
slumbered  for  ever  in  its  quarries,  if  architecture  had  not,  under  the 
guidance  of  taste,  taught  us  to  rear  the  dome,  and  the  temple,  the 
church  of  religion,  and  the  hall  of  legislation,  the  column  of 
triumph,  and  the  obelisk  of  sorrow.  To  what  an  amazing  extent 
are  the  daily  operations  of  the  press  !  With  how  many  arts,  with 
how  much  commerce,  with  what  various  manufactures,  is  it  com- 
bined !  The  paper  may  be  made  of  the  linen  of  Italy,  and  the 
cotton  of  Carolina,  or  Egypt,  or  the  Indies ;  the  type  and  ink  of 
the  products  of  various  climes  ;  and  the  text  must  be  composed,  and 
the  sheets  worked  off,  by  the  care  and  diligence  of  many  minds. 
And  yet,  if  no  books  were  to  be  printed,  if  no  newspaper  or  pamph- 
let were  to  be  struck  off,  but  what  were  indispensable ;  if  we 
were  to  deem  all  classical  learning  useless  ;  and  all  poetry,  and  fiction, 
and  dissertation,  and  essay,  and  history,  a  sad  abuse  of  time  and 
labor  and  ingenuity,  because  we  could  do  without  them,  and  because 
they  did  not  plant  our  fields,  or  turn  our  mills,  or  sail  our  ships ; 
I  fear,  that  the  race  of  authors  would  soon  become  extinct;  and 
the  press,  busy,  as  it  now  is,  with  its  myriads,  would  sink  back  into 
the  silence  of  the  days  of  Faustus,  and  require  no  aid  from  the 
supernatural  arts  of  his  suspected  coadjutor.  Sure  I  am,  that  the 
power-press  of  your  own  Treadwell,  that  beautiful  specimen  of 
skill  and  ingenuity,  would  be  powerless,  and  no  longer  in  its  magical 
works  delight  us,  in  our  morning  search,  or  in  our  evening  lucubra- 
tions. 

I  have  made  these  suggestions,  not  so  much  as  appropriate  to 
the  objects,  which  I  have  in  view  in  this  address,  as  to  guard 
against  the  supposition  in  what  follows,  that  the  liberal  arts  are  not 
worthy  of  our  most  intense  admiration  and  respect. 

If  I  were  called  upon  to  state  that,  which,  upon  the  whole,  is 
the  most  striking  characteristic  of  our  age,  that,  which  in  the  largest 
extent  exemplifies  its  spirit,  I  should  unhesitatingly  answer,  that  it 
is  the  superior  attachment  to  practical  science  over  merely  specu- 
lative science.  Into  whatever  department  of  knowledge  we  may 
search,  we  shall  find,  that  the  almost  uniform  tendency  of  the  last  fifty 
years  has  been  to  deal  less  and  less  with  theory,  and  to  confine  the 
attention  more  and  more  to  practical  results.  There  was  a  period, 
when  metaphysical  inquiries  constituted  the  principal  delight  of 
scholars  and  philosophers ;  and  endless  were  the  controversies 
and  the  subtleties,  about  which  they  distracted  themselves  and 
their  follower       The  works  of  Aristotle,  one  of  the  greatest  gen- 


DISCOURSE    BEFORE    THE    MECHANICS1    INSTITUTE.  115 

iusesof  all  antiquity,  were  studied  with  a  diligence,  which  will  hardly 
be  believed  in  our  day ;  and  exerted  an  influence  over  the  minds  of 
men,  almost  down  to  the  close  of  the  seventeenth  century,  as 
wonderful,  as  it  was  universal.  He  w;is  read,  not  in  what  would 
now  be  deemed  most  important,  in  his  researches  into  natural 
history,  and  the  phenomena  of  the  external  world,  or  in  his  dis- 
sertations on  politics,  and  government,  and  literature  ;  but  in  his 
metaphysics,  and  endless  inquiries  into  mind,  and  spirit,  and  essen- 
ces, and  forms,  and  categories,  and  syllogisms. 

Lord  Bacon,  two  centuries  ago,  in  some  most  profound  discourses, 
exposed  the  absurdity  of  the  existing  system  of  study,  and  of  its 
unsatisfactory  aims  and  results.  He  vindicated  the  necessity  of 
inquiring  into  mental,  as  well  as  natural  phenomena,  by  other  means  ; 
by  what  is  called  the  method  of  induction,  that  is,  by  a  minute 
examination  of  facts,  or  what  may  properly  be  called  experimental 
philosophy.  This,  in  his  judgment,  was  the  only  safe  and  sure  road 
to  the  attainment  of  science  ;  and,  by  subjecting  every  theory  to  the 
severe  test  of  facts,  wTould  save  a  useless  consumption  of  time  and 
thought  upon  vague  and  visionary  projects. 

It  may  seem  strange,  that  such  wise  counsels  should  not  have 
been  listened  to  with  immediate,  if  not  universal  approbation.  The 
progress,  however,  even  of  the  most  salutary  truths  is  slow,  when 
there  are  no  artificial  obstacles  in  the  way.  But  when  men's  minds 
are  preoccupied  by  systems  and  pursuits,  which  have  received  the 
sanction  of  many  generations,  every  effort  to  overcome  errors  is 
like  the  effort  to  carry  an  enemy's  fortress.  It  can  rarely  be 
accomplished  by  storm.  It  must  be  subdued  by  patient  mining,  by 
a  gradual  destruction  of  outposts,  and  by  advances  under  cover  of 
powerful  batteries.  Lord  Bacon's  admonitions  can  scarcely  be  said 
to  have  gained  any  general  credence  until  the  close  of  the  seven- 
teenth century ;  and  their  triumphant  adoption  was  reserved  as  the 
peculiar  glory  of  our  own  day. 

It  is  to  this  cause,  that  we  are  mainly  to  attribute  the  compara- 
tively slight  attention  at  first  paid  to  discoveries,  which  have  since 
become  some  of  the  most  productive  sources,  not  only  of  individual 
opulence,  but,  in  a  large  sense,  of  national  wealth.  The  history 
of  the  steam-engine  is  full  of  instruction  upon  this  subject.  The 
Marquis  of  Worcester,  early  in  the  reign  of  Charles  II.  (1655),  first 
directed  the  attention  of  the  public  to  the  expansive  power  of  steam, 
when  used  in  a  close  vessel  ;  and  of  its  capacity  to  be  employed 
as  a  moving  power  in   machinery.     The  suggestion   slept  almost 


116  LITERARY    DISCOURSES. 

without  notice,  until  about  the  year  1698,  when  Capt.  Savary,  a 
man  of  singular  ingenuity,  constructed  an  apparatus,  for  which  he 
obtained  a  patent,  to  apply  it  to  practical  purposes.  The  invention 
of  a  safety-valve  soon  afterwards  followed  ;  and  that  again  was 
succeeded  by  the  use  of  a  close-fitted  piston,  working  in  a  cylinder. 
Still,  however,  the  engine  was  comparatively  of  little  use,  until 
Mr.  Watt,  a  half  century  afterwards,  effected  the  grand  improve- 
ment of  condensing  the  steam  in  a  separate  vessel,  communicating 
by  a  pipe  with  the  cylinder ;  and  Mr.  Washbrough,  in  1778,  by  the 
application  of  it  to  produce  a  rotatory  motion,  opened  the  most 
extensive  use  of  it  for  mechanical  purposes. 

It  was  in  reference  to  the  astonishing  impulse  thus  given  to 
mechanical  pursuits,  that  Dr.  Darwin,  more  than  forty  years  ago, 
broke  out  in  strains  equally  remarkable  for  their  poetical  enthusiasm, 
and  prophetic  truth,  and  predicted  the  future  triumph  of  the  steam- 
engine. 

"  Soon  shall  thy  arm,  unconquered  steam,  afar 
Drag  the  slow  barge,  or  drive  the  rapid  car  ; 
Or  on  wide  waving  wings  expanded  bear 
The  flying  chariot  through  the  fields  of  air;  — 
Fair  crews  triumphant,  leaning  from  above, 
Shall  wave  their  fluttering  kerchiefs,  as  they  move, 
Or  warrior  bands  alarm  the  gaping  crowd, 
And  armies  shrink  beneath  the  shadowy  cloud." 

What  would  he   have  said,   if  he   had  but  lived  to  witness  the 

immortal  invention  of  Fulton,  which   seems  almost  to  move  in  the 

air,  and  to  fly  on  the  wings  of  the  wind  ?     And  yet  how  slowly  did 

this  enterprise  obtain  the  public  favor  !     I  myself  have  heard  the 

illustrious  inventor  relate,  in  an  animated  and  affecting  manner,  the 

history  of  his  labors  and  discouragements.     When  (said  he)  I  was 

building  my  first  steam-boat  at  New  York,  the  project  was  viewed 

by   the  public   either   with   indifference,   or   with  contempt,   as  a 

visionary  scheme.     My  friends,   indeed,  were  civil,  but  they  were 

shy.     They  listened  with  patience  to  my  explanations,  but  with  a 

settled  cast  of  incredulity   on   their  countenances.     1    felt  the  full 

force  of  the  lamentation  of  the  poet, 

"  Truths  would  you  teach,  or  save  a  sinking  land  ? 
All  fear,  none  aid  you,  and  few  understand." 

As  I  had  occasion  to  pass  daily  to  and  from  the  building-yard,  while 
my  boat  was  in  progress,  I  have  often  loitered  unknown  near  the 
idle  groups  of  strangers,  gathering  in  little  circles,  and  heard  various 
inquiries  as  to  the  object  of  this  new  vehicle.     The  language  was 


DISCOURSE    BEFORE    THE    MECHANICS'    INSTITUTE.  117 

uniformly  that  of  scorn,  or  sneer,  or  ridicule.  The  loud  laugh 
often  rose  at  my  expense  ;  the  dry  jest ;  the  wise  calculation  of 
losses  and  expenditures ;  the  dull,  but  endless,  repetition  of  the 
Fulton  Folly.  Never  did  a  single  encouraging  remark,  a  bright 
hope,  or  a  warm  wish,  cross  my  path.  Silence  itself  was  but 
politeness,  veiling  its  doubts,  or  hiding  its  reproaches.  At  length 
the  day  arrived,  when  the  experiment  was  to  be  put  into  operation. 
To  me  it  was  a  most  trying  and  interesting  occasion.  1  invited 
many  friends  to  go  on  board  to  witness  the  first  successful  trip. 
Many  of  them  did  me  the  favor  to  attend,  as  a  matter  of  personal 
respect ;  but  it  was  manifest,  that  they  did  it  with  reluctance,  fear- 
ing to  be  the  partners  of  my  mortification,  and  not  of  my  triumph. 
I  was  well  aware,  that  in  my  case  there  were  many  reasons  to 
doubt  of  my  own  success.  The  machinery  was  new  and  ill  made  ; 
many  parts  of  it  were  constructed  by  mechanics  unaccustomed  to 
such  work ;  and  unexpected  difficulties  might  reasonably  be  pre- 
sumed to  present  themselves  from  other  causes.  The  moment 
arrived,  in  which  the  word  was  to  be  given  for  the  vessel  to  move. 
My  friends  were  in  groups  on  the  deck.  There  was  anxiety,  mixed 
with  fear,  among  them.  They  were  silent,  and  sad,  and  weary. 
I  read  in  their  looks  nothing  but  disaster,  and  almost  repented  of 
my  efforts.  The  signal  was  given,  and  the  boat  moved  on  a  short 
distance,  and  then  stopped,  and  became  immovable.  To  the 
silence  of  the  preceding  moment  now  succeeded  murmurs  of  dis- 
content, and  agitations,  and  whispers,  and  shrugs.  I  could  hear 
distinctly  repeated,  "I  told  ycu  it  would  be  so  —  it  is  a  foolish 
scheme  —  I  wish  we  were  well  out  of  it."  I  elevated  myself  upon 
a  platform,  and  addressed  the  assembly.  I  stated,  that  I  knew  not 
what  was  the  matter  ;  but  if  they  would  be  quiet,  and  indulge  me 
for  a  half  hour,  I  would  either  go  on,  or  abandon  the  voyage  for 
that  time.  This  short  respite  was  conceded  without  objection. 
I  went  below,  examined  the  machinery,  and  discovered  that  the 
cause  was  a  slight  mal-adjustment  of  some  of  the  work.  In  a  short 
period  it  was  obviated.  The  boat  was  again  put  in  motion.  She 
continued  to  move  on.  All  were  still  incredulous.  None  seemed 
willing  to  trust  the  evidence  of  their  own  senses.  We  left  the 
fair  city  of  New  York ;  we  passed  through  the  romantic  and  ever- 
varying  scenery  of  the  highlands  ;  we  descried  the  clustering  houses 
of  Albany  ;  we  reached  its  shores ;  and  then,  even  then,  when  all 
seemed  achieved,  I  was  the  victim  of  disappointment.  Imagination 
superseded  the  influence  of  fact.     It  was  then  doubted,  if  it  could 


118  LITERARY    DISCOURSES. 

be  done  again ;  or  if  done,  it  was  doubted  if  it  could  be  made  of 
any  great  value. 

Such  was  the  history  of  the  first  experiment,  as  it  fell,  not  in  the 
very  language  which  I  have  used,  but  in  its  substance,  from  the 
lips  of  the  inventor.  He  did  not  live,  indeed,  to  enjoy  the  full 
glory  of  his  invention.  It  is  mournful  to  say,  that  attempts  were 
made  to  rob  him,  in  the  first  place,  of  the  merit  of  his  invention, 
and,  next,  of  its  fruits.  He  fell  a  victim  to  his  efforts  to  sustain  his 
title  to  both.  When  already  his  invention  had  covered  the  waters 
of  the  Hudson,  he  seemed  little  satisfied  with  the  results,  and 
looked  forward  to  far  more  extensive  operations.  My  ultimate 
triumph,  he  used  to  say,  my  ultimate  triumph  will  be  on  the  Missis- 
sippi. I  know,  indeed,  that,  even  now,  it  is  deemed  impossible  by 
many,  that  the  difficulties  of  its  navigation  can  be  overcome.  But 
I  am  confident  of  success.  I  may  not  live  to  see  it ;  but  the 
Mississippi  will  yet  be  covered  by  steam-boats ;  and  thus  an  entire 
change  be  wrought  in  the  course  of  the  internal  navigation  and 
commerce  of  our  country. 

And  it  has  been  wrought.  And  the  steam-boat,  looking  to  its 
effects  upon  commerce  and  navigation,  to  the  combined  influences 
of  facilities  of  travelling  and  facilities  of  trade,  of  rapid  circulation 
of  news,  and  still  more  rapid  circulation  of  pleasures  and  products, 
seems  destined  to  be  numbered  among  the  noblest  benefactions  to 
the  human  race. 

I  have  passed  aside  from  my  principal  purpose,  to  give,  in  this 
history  of  the  steam-boat,  a  slight  illustration  of  the  slow  progress 
of  inventions.  It  may  not  be  unacceptable,  as  a  tribute  to  the 
memory  of  a  man,  who  united  in  himself  a  great  love  of  science 
with  an  inextinguishable  desire  to  render  it  subservient  to  the  prac- 
tical business  of  life. 

But,  perhaps,  the  science  of  chemistry  affords  as  striking  an 
instance  as  any,  which  can  be  adduced,  of  the  value  of  Lord 
Bacon's  maxims,  and  of  the  paramount  importance  of  facts  over 
mere  speculative  philosophy.  It  was  formerly  an  occult  science, 
full  of  mysteries  and  unedifying  processes,  abounding  in  theories, 
and  scarcely  reducible  to  any  rational  principles.  It  is  now  in  the 
highest  sense  entitled  to  the  appellation  of  a  science.  The  laws 
of  chemical  action  have  been  examined  and  ascertained  with  great 
accuracy,  and  can  now  be  demonstrated  with  as  much  clearness 
and  facility,  as  any  of  the  laws,  which  belong  to  mechanical 
philosophy.     It  has  become  eminently  a  practical  science  ;  and  its 


DISCOURSE    BEFORE    THE    MECHANICS'    INSTITUTE.  119 

beneficial  effects  are  felt  in  almost  every  department  of  life.  The 
apothecary's  shop  no  longer  abounds  with  villanous  compounds  and 
nostrums,  the  disgrace  of  the  art.  Chemistry  has  largely  admin- 
istered to  the  convenience,  as  well  as  the  efficacy,  of  medicines,  by 
ascertaining  their  qualities  and  component  parts,  by  removing 
nauseous  substances,  simplifying  processes,  and  purifying  the  raw 
materials.  It  has  secured  the  lives  of  thousands  by  its  wonderful 
safety  lamps,  which  prevent  explosions  from  the  invisible,  but  fatal 
firedamps  of  mines.  It  lights  our  streets  and  theatres  by  its  beau- 
tiful gas,  extracted  from  coal.  It  enters  our  dye-houses,  and 
teaches  us  how  to  fix  and  discharge  colors,  to  combine  and  to 
separate  them ;  to  bleach  the  brown  fibre,  and  impart  the  never 
fading  tint.  It  discloses  the  nature  and  properties  of  light  and 
heat,  of  air  and  water,  of  the  products  of  the  vegetable  and  animal 
kingdoms,  of  earths,  and  alkalies,  and  acids,  and  minerals,  and 
metals.  And,  though  we  have  not  as  yet  discovered  by  it  the 
philosopher's  stone,  or  learned  how  to  transmute  all  other  substan- 
ces into  gold  ;  we  have  gained  by  it  a  much  more  valuable  secret, 
the  art  of  improving  our  agriculture,  perfecting  our  manufactures, 
and  multiplying  all  our  comforts,  by  giving  new  power  to  all  the 
arts  of  life,  and  adding  new  vigor  to  home-bred  industry.  It  has 
indeed  conferred  benefits,  where  they  have  been  least  expected. 
By  expounding  the  origin  and  causes  of  ignes  fatui,  it  has  put  to 
flight  the  whole  host  of  goblins,  and  imps,  and  fairies,  and  sprites, 
that  inhabited  our  low  grounds  and  wastes,  and  required  some  holy 
incantation  to  lay  them,  in  the  good  old  clays  of  superstition,  and 
omens,  and  death  watches,  and  ghosts,  that  vanished  at  the  crowing 
of  the  cock.  It  may  not,  indeed,  be  said  to  have  given  much  aid 
to  the  law,  except  when  some  luckless  inventor  has  been  driven 
into  a  tedious  lawsuit  by  an  infringement  of  his  patent,  and  has 
found  his  money  melt  away  under  its  dissolving  power. 

Half  a  century  ago  the  composition  of  the  atmosphere  and  ocean 
were  unknown  to  philosophy.  The  identity  of  the  electric  fluid 
and  lightning  was  scarcely  established.  The  wonders  disclosed  by 
the  galvanic  battery  had  not  even  entered  into  the  imagination  of 
man. 

It  is  unnecessary  for  me  to  trace  the  causes,  which  gradually  led 
to  these  changes  in  the  objects  and  pursuit  of  science.  For  a  long 
period  after  the  revival  of  letters,  the  minds  of  educated  men  were 
almost  wholly  engrossed  by  classical  learning,  and  philology,  and 
criticism,  and  dogmatical  theology,  and  endless  commentaries  upon 


1-20  LITERARY    DISCOURSES. 


scanty  texts,  both  in  law  and  divinity.  The  study  of  pure  and 
mixed  mathematics  succeeded ;  and  astronomy,  as  it  deserved, 
absorbed  all  the  attention  and  genius,  which  were  not  devoted  to 
literature.  But  scholars  of  all  sorts,  by  general  consent,  looked 
with  indifference  or  disdain  upon  the  common  arts  of  life,  and  felt 
it  to  be  a  reproach  to  mingle  in  the  business  of  the  artisan.  One 
would  suppose,  that  the  alliance  between  science  and  the  arts  was 
so  natural  and  immediate,  that  little  influence  would  be  necessary 
to  bring  about  their  union.  But  the  laboratory  and  the  workshop, 
the  study  of  the  geometrician  and  the  shed  of  the  machinist,  were 
for  ages  at  almost  immeasurable  distances  from  each  other ;  and 
the  pathways  between  them  were  few,  and  little  frequented. 

It  was  not  until  some  fortunate  discoveries  in  the  arts  had  led  to 
opulence,  that  scientific  men  began  to  surrender  their  pride,  and  to 
devote  themselves  practically  to  the  improvement  of  the  arts.  The 
first  great  step  in  modern  science  was  to  enter  the  work-shop,  and 
superintend  its  operations,  and  analyze  and  explain  its  principles. 
And  the  benefits  derived  from  this  connexion  have  already  been 
incalculable  both  to  art  and  science.  Each  has  been  astonishingly 
improved  by  the  other  ;  and  a  hint  derived  from  one  has  often  led 
on  to  a  train  of  inventions  and  discoveries,  the  future  results  of 
which  are  beyond  all  human  power  to  measure.  Thus,  dignity  and 
importance  have  been  added  to  both.  The  manufacturer,  the 
machinist,  the  chemist,  the  engineer,  who  is  eminent  in  his  art, 
may  now  place  himself  by  the  side  of  the  scholar,  and  the  mathe- 
matician, and  the  philosopher,  and  find  no  churlish  claim  for  prece- 
dency put  in.  His  rank  in  society,  with  reference  either  to  the 
value  of  the  products  of  his  skill,  or  the  depth  of  his  genius,  sinks 
him  not  behind  the  foremost  of  those,  who  strive  for  the  first  literary 
distinctions.  This  fortunate  change  in  the  public  opinion,  which 
has  made  it  not  only  profitable,  but  honorable,  to  pursue  the  me- 
chanical arts,  is  already  working  deeply  into  all  the  elements  of 
modern  society.  It  has  already  accomplished,  what  it  is  scarcely 
a  figure  of  speech  to  call,  miracles  in  the  arts.  Who  is  there, 
that  would  not  desire  to  rival,  if  he  does  not  envy,  the  inventions 
of  Watt,  of  Arkwright,  and  Fulton  ?  Who  would  ask  for  a  fairer 
reputation,  or  loftier  or  more  enduring  fame,  than  belongs  to  them  ? 
And  yet  we  have  but  just  entered  on  the  threshold  of  the  results, 
to  which  their  labors  must  lead  future  generations.  We  can 
scarcely  imagine  the  number  of  minds,  which  have  been  already 
stimulated  to  the  pursuit  of  practical   science  by  their  successful 


DISCOURSE    BEFORE    THE    MECHANICS'    INSTITUTE.  121 

example.  Whichever  way  we  turn,  we  may  see  minds  of  the  first 
class  diverted  from  the  established  professions  of  law,  physic,  and 
divinity,  to  become  the  votaries,  nay,  the  enthusiastic  votaries,  of 
the  arts.  And  we  are  beginning  to  realize  the  first  effects  of  this 
intense  application  and  appropriation  of  the  genius  of  our  age,  in 
simultaneous  and  elegant  inventions  in  various  arts. 

It  is  true,  in  the  general  progress  of  society,  that  art  commonly 
precedes  science.  The  savage  first  constructs  his  hut,  prepares 
his  food,  fashions  his  weapons  of  defence,  and  multiplies  his  power, 
by  the  application  of  the  rudest  materials.  His  wants  being  sup- 
plied, he  may  next  dream  of  luxuries.  But  the  road  lies  open  to 
him,  not  by  the  investigation  of  principles,  but  by  the  application 
of  manual  dexterity  and  steady  labor  to  acquire  them.  And  this, 
for  the  most  part,  continues,  or  rather  has  continued,  to  be  the  order 
of  things,  until  very  late  stages  of  civilization  and  refinement.  At 
present,  this  order  is  almost  entirely  reversed.  It  may  now  be  said 
with  truth,  that,  in  a  general  view,  science  precedes  art ;  that  is,  the 
improvements,  which  are  made  in  art,  arise  more  often  from  an 
exact  investigation  of  principles,  than  from  bare  experiments,  or 
accidental  combinations.  Principles  suggest  the  experiment,  rather 
than  experiment  the  principles.  In  the  most  important  branches 
of  manufactures,  where  skill  is  so  constantly  in  demand,  and  econ- 
omy in  operation  is  so  indispensable,  and  competition  is  universal, 
there  is  now  a  perpetual  tasking  of  the  wit  of  man  to  invent  some 
cheaper,  thriftier,  or  neater  combination.  Something  to  increase 
the  velocity  and  uniformity  of  motion,  the  delicacy  and  certainty 
of  spinning,  the  beauty  or  fineness  of  fabrics,  the  simplicity  or 
directness  in  the  application  of  power,  or  something  to  ascertain  and 
separate  the  worthless  from  the  valuable  in  materials,  is  the  ambition 
of  a  thousand  minds  at  the  same  instant ;  and  the  project  holds  out 
ample  rewards  to  the  fortunate  discoverer.  The  result  is,  that  the 
discovery  is  often  simultaneously  made  by  different  minds  at  great 
distances,  and  without  the  slightest  communication  with  each  other. 
At  other  times,  different  inventions  are  at  the  same  moment  em- 
ployed, and  work  out  with  rival  skill  the  same  purposes  by  opposite 
means.  In  this  way,  and  especially  in  manufactures,  the  most 
perfect  existing  machinery  is  perpetually  in  danger  of  becoming 
useless,  or  at  least  unprofitable,  by  the  introduction  of  a  single 
improvement,  which  gives  it  a  superiority  of  one  per  centum  upon 
the  capital  employed.  An  instance,  illustrative  of  these  remarks, 
occurred  in  the  course  of  my  own  official  duties,  in  a  suit  for  the 
16 


122  LITERARY    DISCOURSES. 

infringement  of  a  patent  right.  A  beautiful  improvement  had  been 
made  in  the  double-speeder  of  the  cotton  spinning  machine,  by 
one  of  our  ingenious  countrymen.  The  originality  of  the  inven- 
tion was  established  by  the  most  satisfactory  evidence.  The 
defendant,  however,  called  an  Englishman,  as  a  witness,  who 
had  been  but  a  short  time  in  the  country,  and  who  testified 
most  explicitly  to  the  existence  of  a  like  invention  in  the  im- 
proved machinery  in  England.  Against  such  positive  proof  there 
was  much  difficulty  in  proceeding.  The  testimony,  though  doubted, 
could  not  be  discredited  ;  and  the  trial  was  postponed  to  another 
term,  for  the  purpose  of  procuring  evidence  to  rebut  it.  An  agent 
was  despatched  to  England,  for  this  and  other  objects ;  and,  upon 
his  return,  the  plaintiff  was  content  to  become  nonsuited.  There 
was  no  doubt,  that  the  invention  here  was  without  any  suspicion  of 
its  existence  elsewhere  ;  but  the  genius  of  each  country,  almost  at 
the  same  moment,  accomplished  independently  the  same  achieve- 
ment. 

1  have  introduced  these  considerations  to  the  view  of  those,  who 
are  engaged  in  the  arts,  and  especially  of  those,  whose  studies  this 
society  is  designed  to  patronize,  for  the  purpose  of  leading  them  to 
the  reflection,  that,  in  the  present  state  of  things,  it  is  no  longer  safe 
to  be  ignorant ;  and  that  mere  dexterity  and  mechanical  adroitness, 
expertness  of  hand,  or  steadiness  of  labor,  are  not  alone  sufficient 
to  guaranty  to  the  individual  a  successful  issue  in  his  business. 
Science  is  becoming  almost  indispensable,  in  order  to  master  im- 
provements, as  they  occur,  and  to  keep  up,  in  some  measure,  with 
the  skill  of  the  age.  It  will  otherwise  happen,  that  a  mechanic, 
by  the  time  he  has  arrived  midway  in  life,  will  find  himself  super- 
seded by  those,  who,  though  much  younger,  have  begun  life  under 
more  favorable  auspices.  But  upon  this  I  may  have  occasion  to 
enlarge  a  little  more  hereafter. 

I  have  already  spoken  of  the  advantages  resulting  from  scientific 
men's  becoming  familiar  with  the  workshop,  and  the  operations  of 
art.  But  a  far  more  important  object,  and  the  second  great  step 
in  improvement,  is  to  elevate  mechanics  and  artisans  to  the  rank  of 
scientific  inquirers. 

It  is  singular,  that  no  attempt  was  ever  made  to  provide  syste- 
matically for  such  an  object,  until  a  period  so  recent,  that  it  seems 
but  an  affair  of  yesterday.  The  truth  is  so  obvious,  that  he,  who 
is  engaged  in  the  practice  of  an  art,  must,  with  equal  advantages, 
be  far  better  qualified  to  improve   and   perfect  its  operations,  than 


DISCOURSE    BEFORE    THE    MECHANICS'    INSTITUTE.  123 

he,  who  merely  theorizes,  without  any  knowledge  of  practical  diffi- 
culties, that  it  is  matter  of  surprise,  that  it  should  have  been  so  long 
overlooked.  The  origin  and  history  of  Mechanics'  Institutions  were 
brought  before  you,  on  the  first  opening  of  your  own  Institution, 
with  so  much  fulness  and  accuracy,  by  the  learned  gentleman,  who 
addressed  you  on  that  occasion,  that  I  may  well  be  spared  any 
effort  to  retouch,  what  he  has  so  faithfully  delineated.  Until  the 
nineteenth  century,  no  one  thought  of  a  system  of  scientific  instruc- 
tion, much  less  of  mutual  instruction,  for  those,  who  were  to  be 
bred  in  the  arts.  These  institutions  began,  as  you  know,  under  the 
auspices  of  Professor  Anderson,  at  Glasgow,  and  so  slowly  worked 
their  way  into  public  favor,  that,  ten  years  ago,  they  were  unknown 
in  that  city,  which  boasts  herself  the  modern  Athens  ;  and,  seven 
years  ago,  all  the  influence  and  reputation  of  Dr.  Birkbeck  were 
requisite  to  introduce  them  into  the  reluctant  circles  of  London. 

I  look  upon  this,  as  a  new  era  in  the  history  of  science ;  and  it 
may  be  safely  predicted,  that  these  establishments  are  destined 
hereafter  to  work  more  important  changes,  in  the  structure  of  soci- 
ety, and  in  the  improvement  of  the  arts,  than  any  single  event, 
which  has  occurred  since  the  invention  of  printing. 

What  I  propose  in  the  residue  of  this  discourse  is,  to  offer  some 
considerations  in  vindication  of  this  opinion,  and  also  some  consid- 
erations by  way  of  encouragement  to  those,  who,  as  mechanics  and 
artisans,  are  invited  to  devote  themselves  to  the  pursuit  of  liberal 
science. 

And,  in  the  first  place,  I  might  remark,  that  genius  and  talent  are 
limited  to  no  rank  or  condition  of  life.  They  have  been  distributed 
by  the  bounty  of  Providence,  with  an  equal  hand,  through  every 
class  of  society.  They  are  among  those  gifts,  which  poverty  cannot 
destroy,  or  wealth  confer;  which  spring  up  in  the  midst  of  discour- 
agements and  difficulties,  and,  like  the  power  of  steam,  acquire  new 
elasticity  by  pressure  ;  which  ripen  in  the  silence  of  solitude,  as 
well  as  in  the  crowded  walks  of  society ;  which  the  cottage  may 
nourish  into  a  more  healthy  strength,  than  even  the  palace,  or  the 
throne.  The  most  formidable  enemy  to  genius  is  not  labor,  but 
indolence  ;  want  of  interest  and  excitement ;  want  of  motive  to 
warm,  and  of  object  to  accomplish;  ignorance  of  means,  leading 
to  indifference  to  ends.  Hence  it  is,  that  the  very  highest  and  the 
very  lowest  orders  of  society  often  present  the  same  mental  phe- 
nomena—  a  fixed  and  languishing  disease  of  the  intellectual  powers, 
where  curiosity  wastes  itself  in  trifles,  and  a  cold  listlessness,  brood- 


124  LITERARY    DISCOURSES. 

ing   over   the    thoughts,  lets   fall  a    preternatural    stupor.     Their 
misfortune  is  that,  so  beautifully  touched  by  the  poet, 

"  But  knowledge  to  their  eyes  her  ample  age, 
Rich  with  the  spoils  of  time,  did  ne'er  unroll." 

I  might  remark,  in  the  next  place,  that  the  rewards  of  science 
are  most  ample,  whether  they  be  viewed  in  reference  to  personal 
enjoyment,  to  rank  in  society,  or  to  substantial  wealth.  It  is  one 
of  the  wise  dispensations  of  Providence,  that  knowledge  should 
not  only  confer  power,  but  should  also  confer  happiness.  Every 
new  attainment  is  a  new  source  of  pleasure  ;  and  thus  the  desire 
for  it  increases  as  fast  as  it  is  gratified.  It  not  only  widens  the 
sphere  of  our  thoughts,  but  it  elevates  them,  and  thus  gives  them 
a  livelier  moral  action.  When  one  has  seen  an  apple  fall  from 
a  tree,  and  is  told,  for  the  first  time,  that  its  fall  is  regulated  by 
the  law  of  gravitation,  the  simplicity  of  the  truth  may  scarcely 
awaken  his  curiosity.  When  he  is  told,  that  the  same  law  regulates 
the  plumb  line,  and  enables  him  unerringly  to  erect  his  house  in  the 
true  perpendicular,  he  perceives,  with  pleasure,  a  new  application 
of  it.  When  he  is  further  told,  that  there  is  a  constantly  increasing 
rapidity  in  every  descending  body,  by  the  same  law,  so  that  it  falls 
in  the  second  instant  double  the  space  it  does  in  the  first ;  and  that 
the  whole  doctrine  of  projectiles,  both  in  nature  and  art,  depends 
upon  it ;  that  it  governs  the  flow  of  rivers,  and  the  fall  of  cataracts, 
and  the  gentle  rains,  and  the  gentler  dews,  and  the  invisible  air ; 
that  it  guides  the  motion  of  the  water-mill,  the  aim  of  gunnery, 
and  the  operations  of  the  steam-engine  ;  —  he  cannot  but  awaken  to 
some  emotions  of  admiration.  But  when  he  has  been  taught,  that 
the  same  law  regulates  the  ebb  and  flow  of  the  tide,  the  motions  of 
the  earth,  and  the  planets,  and  the  sun,  and  the  stars,  and  holds 
them  in  their  orbits,  and  binds  them  in  an  eternally  revolving 
harmony  ;  that  to  this  he  owes  the  return  of  day  and  night,  the 
changes  of  the  seasons,  seed-time  and  harvest,  summer  and  winter ; 
if  he  be  any  thing,  but  a  clod  of  the  valley,  how  can  he  but  exclaim, 
in  wonder  and  amazement, 

"  These,  as  they  change,  Almighty  Father,  these 
Are  but  the  varied  God.     The  rolling  year 
Is  full  of  thee." 

What  can  tend  more  to  exalt  the  dignity  of  our  nature,  than  the 
consideration,  that  the  mind  of  man  has  not  only  been  able  to  grasp 
and  demonstrate  this  law,  but  to  apply  it  to  the  solution  of  an  infinite 


DISCOURSE    BEFORE    THE    MECHANICS'    INSTITUTE.  125 

number  of  questions,  apparently  beyond  the  reach  of  his  boldest 
efforts  ?  He  has  been  able  to  ascertain  the  motions  and  size  of  the 
whole  planetary  system  ;  to  calculate  every  perturbation,  arising 
from  the  constant,  but  changeful  influence  of  mutual  gravitation  ; 
to  ascertain  the  paths  of  comets ;  to  calculate  eclipses  with  unerring 
certainty  ;  and  to  foretell  the  very  minute,  nay,  the  very  instant,  of 
occultation  of  the  most  distant  satellites.  He  can  thus  read,  through 
the  past,  as  well  as  the  future,  all  the  various  states  of  the  heavens, 
for  thousands  of  years.  He  has  been  able  to  apply  this  knowledge 
to  the  noblest  purposes ;  and  the  mariner,  by  its  aid,  descries  his 
home-port  with  the  same  ease,  on  the  dark  bosom  of  the  ocean,  as 
he  points  it  out  from  the  little  hill-top,  that  overlooks  his  native 
village. 

If  we  pass  from  the  contemplation  of  this  sublime  law  of  nature 
to  others,  which  belong  to  animal  or  vegetable  life,  to  those,  which 
form  and  preserve  the  treasures  of  the  earth,  and  of  the  sea,  even 
down  to  those,  which  regulate  the  minutest  particles  of  matter,  the 
light  of  science  will  enable  us  every  where  to  behold  new  and 
increasing  wonders,  and  to  remark  the  operations  of  infinite  power, 
for  ever  varied,  and  yet  for  ever  the  same.  It  is  impossible,  that  the 
mere  perception  of  such  laws  should  not  afford  pleasure  to  every 
rational  mind.  But  when  we  further  learn,  that  these  very  laws 
are  made  continually  subservient  to  the  use  of  man ;  that,  by  the 
knowledge  of  them,  he  is  enabled  to  create  power,  and  perfect 
mechanical  operations;  that  he  can  make  the  winds  and  the  waves, 
the  earth  and  the  air,  heat  and  cold,  the  ductile  metals  and  the 
solid  rocks,  the  fragile  flower  and  the  towering  forest,  minister  to 
his  wants,  his  refinements,  and  his  enterprise  ;  we  are  compelled  to 
admit,  that  ihe  capacity  to  trace  back  such  effects  to  their  causes 
must  elevate,  and  enlarge,  and  invigorate  the  understanding. 

There  is  also  real  dignity,  as  well  as  delight,  in  such  studies  ; 
and  whenever  they  shall  become  the  general  accompaniment  of 
mechanical  employments,  they  must  work  a  most  beneficial  change 
in  the  general  structure  of  society.  The  arts  of  life  are  now  so 
various  and  important,  so  intimately  connected  with  national  pros- 
perity and  individual  comfort,  that,  for  the  future,  a  very  large 
proportion  of  the  population  of  every  civilized  country  must  be 
engaged  in  them.  The  time  is  not  far  distant,  when  the  mechanic 
and  manufacturing  interest  will  form  the  great  balancing  power, 
between  the  conflicting  interests  of  commerce  and  agriculture ; 
between  the  learned  professions  and  the  mere  proprietors  of  capi- 


126  LITERARY    DISCOURSES. 

tal  ;  between  the  day  laborer  and  the  unoccupied  man  of  ease.  In 
proportion  to  the  degree  of  the  knowledge,  which  shall  belong  to 
this  collective  interest,  in  proportion  as  its  industry  shall  be  com- 
bined with  science,  will  be  its  influence  on  the  wellbeing  and  safety 
of  society.  It  is  of  the  first  importance,  therefore,  that  education 
•  should  here  exert  its  most  extensive  power;  and,  by  elevating  the 
morals,  as  well  as  stimulating  the  enterprise  of  artisans,  give  a 
triumph  to  intellect  over  mere  physical  force  ;  and  thus  secure  one 
of  the  most  dangerous  passes  of  social  life  against  the  irruptions  of 
ignorance  and  popular  fury.  It  is  a  truth  not  always  sufficiently  felt, 
that  science,  while  it  elevates  the  objects  of  desire,  has,  in  the  same 
proportion,  a  tendency  to  restrain  the  outbreakings  of  the  bad  pas- 
sions of  mankind. 

I  might  remark,  in  the  next  place,  that  the  pursuit  of  practical 
science  is  not  only  a  source  of  inexhaustible  pleasure,  opening  new 
avenues  to  rank  and  reputation  ;  but  it  is,  at  the  same  time,  one  of 
the  surest  foundations  of  opulence.  Mere  mechanical  labor,  from 
the  perpetual  competition  arising  from  an  increasing  population,  has 
a  natural  tendency  to  descend  in  the  scale  of  compensation.  But 
this  effect  is  astonishingly  increased  by  the  constant  application  of 
machinery,  as  a  substitute  for  the  labor  of  man.  The  perfection 
of  machinery  has,  in  this  manner,  at  times,  thrown  whole  classes 
of  artisans  out  of  employment,  and  compelled  them  to  resort  to 
new  pursuits  for  support.  Mere  manual  skill  and  dexterity  are 
nothing,  when  put  in  competition  with  the  regularity,  rapidity,  and 
economy  of  machinery,  working  under  the  guidance  of  science. 
Now,  it  must  be  obvious,  that  in  proportion  as  an  artisan  possesses 
science,  will  be  his  facility  in  passing  from  one  branch  of  an  art  to 
another  ;  and  his  ability  to  command  a  higher  price  for  his  services. 
His  capacity,  too,  for  adopting  improvements,  and  keeping  pace 
with  the  genius  of  the  age,  will  (as  has  been  already  hinted)  be 
thus  immeasurably  increased.  So,  that,  in  the  narrowest  and  most 
limited  view,  there  is  a  positive  certainty  of  gain,  by  understanding 
the  scientific  principles  of  the  art,  which  we  profess. 

But  this  would  be  a  very  inadequate  view  of  the  benefits  arising 
from  this  source.  It  is  the  power  of  science,  in  awakening  the 
dormant  energy  of  genius  ;  in  pointing  out  to  it  the  true  means  to 
arrive  at  great  ends  ;  in  preventing  it  from  being  wasted  in  visionary 
schemes,  or  retarded  by  clumsy  processes ;  in  short,  it  is  the  power 
of  science,  in  suggesting  the  first  hint,  or  striking  out  the  first  spark, 
or  directing  the  unsteady  aim,  or  removing  the  intermediate  obsta- 


DISCOURSE    BEFORE    THE    MECHANICS'    INSTITUTE.  127 

cles,  that  constitutes  its  true  value,  and  perhaps  its  nohlest  excel- 
lence. Even  after  the  first  step  is  taken,  and  the  first  development 
of  inventive  genius  assumes  shape  and  body,  how  many  obstacles 
are  to  be  overcome  ;  how  many  unexpected  difficulties  are  to  be 
met  ;  how  many  toilsome  days  and  nights  are  to  be  consumed,  in 
nice  adjustments  and  minute  alterations  !  It  is  here,  that  science 
may  be  said  to  foster  and  nourish  genius  ;  to  administer  to  its  wants, 
and  soothe  its  disquietudes,  and  animate  its  inquiries.  What  loga- 
rithms are  to  the  mathematician,  knowledge  of  principles  is  to  the 
mechanic.  It  not  only  abridges  the  processes  of  computation,  and 
thus  diminishes  labor,  but  it  puts  him  in  possession  of  means  and 
computations,  otherwise  absolutely  beyond  the  reach  of  human 
calculation.  After  Fulton  had  securely  achieved,  in  his  own  opinion, 
the  invention  of  the  steam-boat,  months  were  consumed  by  him, 
as  I  learned  from  his  own  lips,  in  making  the  necessary  calculations 
upon  the  resistance  of  fluids,  in  order  to  ascertain  what  was  the 
best  form  for  the  boat,  to  ensure  a  successful  issue  to  his  experiment. 
I  myself,  in  the  course  of  my  judicial  life,  have  had  occasion  to 
learn  from  witnesses  the  origin,  and  history,  and  gradual  formation, 
of  two  of  the  most  elegant  inventions  in  our  own  country  ;  and,  in 
both  instances,  the  original  machine,  rude,  and  unsightly,  and  cum- 
brous enough,  was  brought  into  court,  as  the  best  proof  of  the  first 
sketch,  compared  with  the  last  labors  of  the  admirable  inventors. 
I  have  not  the  least  hesitation  in  saying,  that,  if  either  of  those 
extraordinary  minds  had  been  originally  instructed  in  the  principles 
of  mechanical  science,  half  their  labors  would  have  been  saved. 
Sure  I  am,  that  one  of  them  would  not,  with  his  later  acquirements 
in  science,  have  laid  aside,  for  a  long  time,  the  creation  of  his  own 
genius,  as  if  in  despair,  that  it  could  ever  attain  maturity. 

I  allude  to  the  card  machine  of  Whittemore,  and  the  nail  machine 
of  Perkins.  Of  the  former  it  would  not  become  me  to  speak  in 
terms  of  confident  praise,  from  my  own  want  of  the  proper  know- 
ledge of  machinery.  But  I  must  confess,  that,  when  I  first  saw  it, 
it  seemed  to  me  to  be  almost  an  intelligent  being,  and  to  do  every 
thing  but  speak  ;  and,  whether  considered  with  reference  to  the 
simplicity  of  its  means,  the  accuracy  and  variety  of  its  operations, 
or  its  almost  universal  capacity  for  common  use,  it  deserves  the 
highest  commendation.  Other  inventions  have  since  somewhat 
narrowed  the  sphere  of  its  operations,  and  made  its  celebrity  less 
felt.  But  I  may  quote  the  remark  of  one  of  our  most  ingenious 
countrymen,  who,  to  a  question  put  to  him,  what,  after  two  months' 


128  LITERARY    DISCOURSES. 

examination  of  the  patent  office  at  Washington,  and  bis  own  sur- 
veys elsewhere,  appealed  to  him  the  most  interesting  of  American 
inventions,  unhesitatingly  answered,  Whiuemore's  card  machine. 
The  remark  was  made  by  Perkins  ;  and  perhaps  no  person,  but 
himself,  would  have  thought,  that  his  own  nail  machine,  which  with 
its  toggle-joint  consumes  bars  of  iron,  and  returns  them  in  nails,  with 
the  tranquil  grandeur  of  a  giant,  conscious  of  superior  power,  might 
not  have  borne  the  most  strenuous  rivalry. 

And  this  leads  me  to  remark,  in  the  next  place,  as  matter  of 
pride,  as  well  as  of  encouragement,  that  to  mechanics  themselves 
we  are  indebted  for  some  of  the  most  useful  and  profitable  inven- 
tions of  our  age.  I  have  already  adverted  to  the  perfection  of  the 
steam-engine  by  Walt.  The  cotton-machine  of  Arkwright  consti- 
tutes an  era  in  inventions,  and  has  already  thrown  back  upon  Asia 
all  her  various  fabrics,  and  compelled  her  to  yield  up  to  European 
skill  the  cheapest  labor  of  her  cheapest  population.  The  inven- 
tions of  Wedgewood  have  led  to  almost  as  striking  a  rivalry  of  the 
pottery  and  wares  of  the  East.  The  cotton-gin,  which  has  given 
to  the  cotton-growing  States  of  the  south  their  present  great  staple, 
is  the  production  of  the  genius  of  Whitney.  In  the  year  1794, 
the  Carolinas  and  Georgia  were  scarcely  known  to  our  ablest  diplo- 
matists, as  cultivators  of  the  plant;  so  obscure  and  unimportant  were 
its  results.  The  invention  of  Whitney  at  once  gave  it  the  highest 
value  ;  and  laid  the  broad  foundation  of  their  present  wealth  and 
prosperity.  At  this  very  moment,  New  England  annually  con- 
sumes, in  her  manufactories,  more  than  one  fifth  part  of  the  eight 
hundred  and  fifty  thousand  bales  of  cotton,  the  annual  produce  of 
their  soil;  which,  but  for  him,  would  have  had  no  existence.  What 
wonders  were  accomplished  by  the  self-taught  architect,  Brindley, 
himself  a  humble  mill-wright ;  and  yet  of  such  vast  compass  of 
thought,  that  to  him  rivers  seemed  of  no  use,  but  to  feed  navigable 
canals,  and  the  ocean  itself  hut  a  large  reservoir  for  water-works  ! 
What  effects  is  our  own  Perkins  producing,  by  one  only  of  his 
numerous  inventions,  —  the  art  of  softening  steel,  so  as  to  admit  of 
engraving  and  then  hardening  it  again,  so  as  to  retain  the  fine  point 
and  polish  of  copper-plate,  without  the  constant  wear  of  the  latter, 
and  its  consequent  tendency  to  depreciation  !  He  has  enabled  us,  as 
it  were,  to  stereotype,  and  multiply,  to  an  almost  incalculable  extent, 
the  most  beautiful  specimens  of  some  of  the  fine  arts ;  and  cheapen 
them,  so  as  to  bring  them  within  the  reach  of  the  most  moderate 
fortunes.      Many  other  illustrious  instances  of  genius,  successfully 


DISCOURSE    BEFORE    THE    MECHANICS'    INSTITUTE.  129 

applied  to  the  improvement  of  the  arts,  might  be  selected  from  the 
workshops  and  common  trades  of  life.  But  in  most  of  these  instances 
it  will  he  found,  that  the  discovery  was  not  the  mere  result  of  acci- 
dent, but  arose  from  the  patient  study  of  principles,  or  from  hints 
gathered  from  a  scientific  observation  of  nice  and  curious  facts.  And 
it  may  be  added,  that,  in  all  these  instances,  in  proportion  as  the 
inventors  acquired  a  knowledge  of  the  principles  of  the  arts,  their 
genius  assumed  a  wider  play,  and  accomplished  its  designs  with  more 
familiar  power  and  certainty.  It  is  a  subject  of  most  profound 
interest,  to  observe  to  what  grand  results  a  common  principle  in 
mechanics,  or  an  apparently  insulated  fact,  may  conduct  us,  under 
the  guidance  of  a  man  of  genius.  The  rule,  for  instance,  in  geom- 
etry, that  the  circumferences  of  circles  are  in  proportion  to  their 
diameters,  lies  at  the  foundation  of  most  of  the  operations  of  prac- 
tical mechanics,  and  has  led  to  the  means  of  increasing  mechanical 
power  to  an  almost  incalculable  extent.  The  lever,  the  pulley, 
and  the  wheel,  are  but  illustrations  of  it.  So,  too,  the  habit  of  nice 
observation  of  facts  (the  almost  constant  attendant  upon  scientific 
acquirements)  has  led  to  surprising  conjectures,  which  have  ended 
in  the  demonstration  of  equally  surprising  truths.  Let  me  avail 
myself  of  one  or  two  illustrations,  which  have  been  already  noticed 
by  others,  as  better  to  my  purpose  than  any  which  my  own  mem- 
ory could  furnish.  In  the  course  of  Sir  Isaac  Newton's  experiments 
to  ascertain  the  laws  of  optics,  he  was  led,  from  the  peculiar  action 
of  the  diamond  upon  light,  to  express  an  opinion,  that  it  was  carbon, 
and  capable  of  ignition,  and  not  belonging  to  the  class  of  crystals. 
That  conjecture  has  in  our  day  been  established,  by  chemical 
experiments,  to  be  a  fact.  He  made  the  discovery,  also,  of  the 
compound  nature  of  light,  and  that  its  white  color  arises  from  a 
mixture  of  all  the  various  colors.  This  has  led  to  various  ingenious 
improvements  in  the  formation  of  the  lenses  of  telescopes,  by  which 
modern  astronomy  has  been  able  to  display  the  heavens  in  new 
beauty  and  order.  When  Franklin,  by  close  observation,  had 
established  the  identity  of  lightning  with  the  electric  spark,  he  was 
immediately  led  to  the  practical  application  of  his  discovery,  by 
ascertaining  the  relative  conducting  power  of  various  substances,  so 
as  to  guard  our  dwellings  from  its  tremendous  agency.  The  gal- 
vanic battery,  to  which  we  are  indebted  for  so  many  discoveries  in 
chemistry,  owes  its  origin  to  an  apparently  trivial  circumstance. 
The  discoverer's  attention  was  drawn  to  an  investigation  of  the 
cause  of  the  twitching  of  a  dead  frog's  leg ;  and  by  patient  and 
aborious  experiments,  he  was  at  length  conducted  to  the  discovery 
17 


130  LITERARY     DISCOURSES. 

of  animal  electricity.  The  polarization  of  light,  as  it  is  called, — 
that  is,  the  fact,  that  rays  of  light  have  different  sides,  which  have 
different  properties  of  reflection,  —  is  a  discovery  in  optics  of  very 
recent  date,  which,  it  is  said,  "  is  so  fertile  in  the  views  it  lays  open 
of  the  constitution  of  natural  bodies,  and  the  minuter  mechanism  of 
the  universe,  as  to  place  it  in  the  very  first  rank  of  physical  and 
mathematical  science."  It  was  discovered  by  the  French  philos- 
opher, Malus,  as  late  as  in  1810,  by  various  minute  and  delicate 
experiments,  and  has  already  led  to  very  extraordinary  results. 

Indeed,  such  is  the  quickening  power  of  science,  that  it  is  scarcely 
possible,  that  its  simplest  germ  should  be  planted  in  the  human  mind, 
without  expanding  into  a  healthy  growth.  It  generates,  as  it  moves 
on,  new  thoughts,  and  new  inquiries,  and  is  for  ever  gathering,  with- 
out exhaustion,  and  without  satiety.  The  curiosity,  which  is  once 
awakened  by  it,  never  sleeps  ;  the  genius,  which  is  once  kindled  at 
its  altar,  burns  on  with  an  inextinguishable  flame. 

It  has  been  remarked,  that  such  was  the  progress  of  astronomical 
science,  and  the  number  of  minds  engaged  in  it,  towards  the  close 
of  the  seventeenth  century,  that,  if  Sir  Isaac  l\ewton  had  never 
lived,  his  splendid  and  invaluable  discoveries  must  have  been  in  the 
possession  of  the  succeeding  age.  The  approaches  had  been  so 
near,  that  they  almost  touched  the  very  verge  of  the  paths,  which 
his  genius  explored,  and  demonstrated  with  such  matchless  ability. 
If  this  be  true  in  respect  to  that  branch  of  physical  science,  it  is 
far  more  strikingly  true  in  respect  to  mechanics.  The  struggle 
here,  in  respect  to  priority  of  inventions,  is  often  so  very  close,  that 
a  single  day  sometimes  decides  the  controversy. 

It  is  from  considerations  of  this  nature;  —  that,  what  has  been 
must  continue  to  be  ;  that  art  is  never  perfect,  and  nature  is  inex- 
haustible ;  that  science,  while  it  is  the  master  of  art,  is  itself  ulti- 
mately dependent  upon  it;  that  the  intellectual  power  grows  up  in 
all  stations,  and  in  all  soils  ;  that,  all  other  circumstances  equal,  he, 
who  knows  and  practises,  must  for  ever  take  the  lead  of  him,  who 
merely  knows,  and  has  none  of  the  skill  to  apply  power,  or  the 
practical  sagacity  to  overcome  difficulties  ;  that  he,  whose  interest 
is  indissolubly  connected  with  his  science,  and  who  feels,  at  every 
turn,  the  animating  impulse  of  reward,  as  well  as  the  pleasure  of 
speculation,  and  the  desire  of  fame,  has  more  enduring  and  instant 
motives,  for  exertion,  than  he,  who  merely  indulges  his  leisure,  or 
his  curiosity  ;  —  it  is,  I  say,  from  these  considerations,  that  I  deduce 
the    conclusion,    that,    when    artisans   and    mechanics    shall   have 


DISCOURSE    BEFORE    THE    MECHANICS'    INSTITUTE.  131 

become  instructed  in  science,  the  inventions  of  this  class  will  be 
more  numerous,  more  useful,  more  profitable,  and  more  ingenious, 
than  those  of  any  other  class,  and  even  perhaps  of  all  other  classes 
of  society. 

What  an  animating  prospect  does  this  afford  !    What  noble  ends, 
to  poor,  neglected,   suffering  genius  !     What  constant  comfort,  to 
cheer  the  hard   hours  of  labor,  and  the  heavier  hours   of  despon- 
dency !     Much  less  of  success  in  life  is  in  reality  dependent  upon 
accident,  or  what  is  called  luck,  than  is  commonly  supposed.     Far 
more  depends  upon  the  objects,  which  a  man  proposes  to  himself; 
what  attainments  he  aspires  to ;  what  is  the  circle,  which  bounds 
his  vision  and  his  thoughts  ;  what  he  chooses,  not  to  be  educated  for, 
but  to  educate  himself  for ;  whether  he  looks  to  the  end  and  aim 
of  the  whole  of  life,  or  only  to  the  present  day  or  hour;  whether 
he  listens  to  the  voice   of  indolence   or   vulgar  pleasure,   or  to  the 
stirring  voice  in  his  own  soul,  urging  his  ambition  on  to  the  highest 
objects.     If  his   views  are  low  and   grovelling ;  if  the  workshop, 
in  its  cold   routine  of  duties,  bounds  all  his   wishes  and  his  hopes, 
his  destiny  is  already  fixed ;  and  the  history  of  his  whole  life  may 
be  read,  though  the  blush  of  youth  still  lingers  on  his  cheeks.     It 
is  not  a  tale  merely  twice  told ;  it  has  been  told  for  millions.     If, 
on  the  other  hand,  he  aspires  to  be  a  man,  in  dignity,  independence, 
spirit,  and  character,  and   to  give  his   talents  their  full   scope  and 
vigor ;  if,  to  a  steady  devotion  to  the  practice   of  his  art,  he  adds  a 
scientific   study   of  its   processes  and   principles,   his  success  is  as 
sure,  as  any  thing  on  this  side  of  the  grave  can  be.     He  may  even 
go  farther,  and  dream  of  fame ;  and,  if  he  possess  the  sagacity  of 
genius,  may  build   a  solid  immortality  upon  the  foundation  of  his 
own  inventions. 

And  why  should  it  not  be  so?  Why  should  not  our  youth, 
engaged  in  the  mechanic  arts,  under  the  auspices  of  institutions 
like  this,  reach  such  a  noble  elevation  of  purpose  ?  America  has 
hitherto  given  her  full  proportion  of  genius  to  the  cultivation  of  the 
arts.  She  has  never  been  behind  the  most  intelligent  portions  of 
the  world,  in  her  contribution  of  useful  inventions  for  the  common 
good.  There  are  some  circumstances  in  the  situation  and  charac- 
ter of  her  population,  which  afford  a  wider  range  for  talent  and 
inquiry,  than  in  any  other  country.  The  very  equality  of  condition; 
the  natural  structure  of  society  ;  the  total  demolition  of  all  barriers 
against  the  advancement  of  talent  from  one  department  of  life  to 
another ;  the  non-existence  of  the  almost  infinite  subdivisions  of 
labor,  by  which,  though  more  perfection  in  the  result  is  sometimes 


132  LITERARY    DISCOURSES. 

obtained;  the  process  has  an  almost  uniform  tendency  to  reduce 
human  beings  to  mere  machines ;  the  mildness  of  the  government ; 
the  general  facility  of  subsistence  ;  the  absence  of  all  laws  regulat- 
ing trades,  and  obstructing  local  competition  ;  —  these,  and  many 
other  causes,  and  especially  our  free  schools,  and  our  cheap  means 
of  education,  offer  to  ingenuous  youth  the  most  inviting  prospects 
to  expand  and  cultivate  their  intellectual  powers.  Under  such 
circumstances,  is  it  too  much  to  prophesy,  that  hereafter  America 
may  take  the  lead  in  mechanical  improvements,  and  give  another 
bright  example  to  the  world,  by  the  demonstration  of  the  truth, 
that  free  governments  are  as  well  adapted  to  perfect  the  arts  of  life, 
and  foster  inventive  genius,  as  they  are  to  promote  the  happiness 
and  independence  of  mankind  ? 

There  are  no  real  obstacles  in  the  way,  which  may  not  be  over- 
come by  ordinary  diligence  and  perseverance.  A  few  hours,  saved 
every  week  from  those  devoted  to  idle  pleasure,  or  listless  indolence, 
would  enable  every  artisan  to  master,  in  a  comparatively  short  time, 
the  elementary  principles  of  the  arts.  He  would  have  the  constant 
benefit  of  refreshing  his  recollection  by  the  practical  application  of 
them,  and  receive  the  demonstration,  at  the  same  time  that  he  was 
taught  the  truth.  He  would  find,  that  the  acquisitions  of  every 
day  added  a  new  facility  for  future  improvement ;  and  that  his  own 
mind,  quickened  and  fertilized  by  various  stores  of  thought,  would 
soon  turn  that  into  the  truest  source  of  enjoyment,  which  at  first 
was  the  minister  of  toil  and  anxiety.  Consider,  for  a  moment,  what 
must  be  the  immediate  effects  of  the  general  adoption  of  a  system 
of  mutual  instruction.  How  powerfully  would  it  work  by  way  of 
encouragement  to  laudable  ambition  ;  how  irresistibly,  to  an  in- 
crease of  skill  and  sagacity  in  the  most  common  employments  of 
life  !  Ask  yourselves,  what  would  be  the  result  of  one  hundred 
thousand  minds  engaged  at  the  same  moment  in  the  study  of 
mechanical  science,  and  urged  on  by  the  daily  motives  of  interest, 
to  acquire  new  skill,  or  invent  new  improvements.  It  seems  to  me 
utterly  beyond  the  reach  of  human  imagination  to  embody  the  re- 
sults, to  which  such  a  constant  discipline  of  the  intellect,  strengthened 
by  the  daily  experience  of  the  workshop,  would  conduct  us.  The 
slightest  spark  of  intelligence  (if  I  may  borrow  a  figure  from  the 
arts)  would  be  blown  into  a  steady  flame,  and  the  raw  material  of 
genius  be  kindled  by  a  spontaneous  combustion  into  the  most  in- 
tense light. 

Gentlemen,  1  will  detain  you  no  longer.  The  remarks,  which 
I  have  addressed   to  you,  have  been    unavoidably   of  a  loose  and 


DISCOURSE    BEFORE    THE     MECHANICS'     INSTITUTE.  133 

desultory  nature.  They  have  been  thrown  together,  not  in  the 
abundance  of  my  leisure,  but  of  my  labors  ;  in  the  midst  of  private 
cares,  and  many  pressing  public  duties.  Such  as  they  are,  I  trust 
they  may  receive  your  indulgence,  if  not  for  their  intrinsic  value, 
at  least  as  my  small  tribute  to  the  merit  of  this  Institution.  If 
I  had  possessed  more  leisure,  I  should  have  preferred  to  have  given 
you,  as  a  more  suitable  topic  for  an  introductory  discourse,  some 
account  of  the  rise  and  progress  of  the  more  important  arts  and 
inventions  in  modern  times.  A  close  survey  of  the  difficulties 
overcome,  and  of  the  triumphs  achieved  by  mechanical  genius,  would, 
after  all,  constitute  the  most  valuable  commentary  upon  the  powers 
of  the  human  mind,  and  the  most  encouraging  lesson  in  the  study 
of  science. 

I  conclude  with  the  reflection,  naturally  arising  from  the  sub- 
ject, that  as  the  true  end  of  philosophy  is  to  render  us  wiser  and 
happier,  so  its  tendency  is  to  warm  our  hearts,  and  elevate  our 
affections,  and  make  us,  in  the  highest  sense,  religious  beings. 
When  we  contemplate  the  physical  creation,  and  observe,  from  the 
minutest  atom  up  to  the  highest  intelligence,  continual  displays  of 
infinite  wisdom,  power,  and  goodness ;  when  we  trace  out  by  the 
light  of  science  the  laws,  which  govern  the  material  world,  and 
observe  the  order,  and  harmony,  and  wonderful  adaptation  of  all, 
from  those,  which  form  the  sparkling  diamond  in  the  mine,  or  pre- 
pare the  volleyed  lightning,  or  generate  the  terrific  earthquake,  or 
direct  the  motions  of  the  ocean,  up  to  those,  which  hold  the  planets 
in  their  spheres  ;  when  we  turn  our  thoughts  within  us,  and  endea- 
vour to  learn  what  we  ourselves  are,  and  consider  the  nature  and 
capacities  of  our  minds,  and  feel  the  divinity,  as  it  were,  stir  within 
us ;  when  we  look  abroad  at  the  curious  displays  of  human 
invention  in  the  arts  and  arrangements  of  life,  and  see  how  man 
has  acquired  dominion  over  the  earth,  and  the  sea,  and  the  air,  and 
the  water  ;  —  how  is  it  possible,  I  say,  when  we  contemplate  such 
things,  not  to  look  up  with  awe,  and  admiration,  and  gratitude,  to 
the  First  Great  Cause  of  all  these  blessings  ?  How  is  it  possible 
not  to  feel,  that  we  are  an  emanation  of  that  eternal  Spirit,  which 
formed  and  fashioned  us,  and  breathed  into  us  a  rational  soul  ? 
How  is  it  possible  not  to  read  for  ourselves  a  higher  destiny,  where 
our  powers  shall  be  permitted  to  expand  in  endless  progression, 
and  continually  witness  new  wonders  of  the  divine  perfection  ? 
Surely,  in  the  contemplation  of  such  things,  we  may  well  exclaim, 

"  Great  and  marvellous   are  thy  works,  Lord  God  Almighty  ;  in 
wisdom  hast  thou  made  them  all." 


DISCOURSE 


INTRODUCTORY  TO  A  COURSE  OF  LECTURES  l'.EFORE  THE  FAMILIES  OF  THE 
PROFESSORS  IN  HARVARD  COLLEGE,  DELIVERED  IN  IIOLDEN  CHAPEL,  DE- 
CEMBER  23,  1830. 


I  should  have  hesitated  to  address  you  on  the  present  occasion,  if 
it  had  been  supposed  to  involve  any  peculiar  or  extraordinary  duties. 
I  have  not  the  leisure  to  mature  a  discourse,  which  should  invite 
the  attention  of  the  learned  by  the  extent  of  its  views,  or  the  depth 
of  its  investigations.  The  necessities  arising  from  the  constant 
pressure  of  professional  engagements  would  alone  be  sufficient  to 
induce  me  to  decline  the  task,  even  if  more  obvious  considerations 
did  not  lead  me  to  the  same  result.  He,  who  would  address  him- 
self to  those,  who  have  cultivated  literature  with  eminent  success, 
or  who  have  travelled,  not  merely  through  the  broad  ways,  but  the 
intricate  mazes  of  science,  must  feel,  that  he  has  many  things  to  do, 
before  he  can  suitably  meet  the  just  expectations  of  his  audience. 
It  is  not  for  him,  under  such  circumstances,  to  place  entire  reliance 
upon  the  resources  of  his  own  mind,  however  comprehensive  they 
may  seem  to  be.  It  is  not  for  him,  under  such  circumstances,  to 
draw  exclusively  upon  his  own  genius  or  imagination  for  views 
original,  or  attractive.  He  may  not  rest  even  on  the  powers  of  elo- 
quence (if  he  should  happen  to  possess  them)  to  adorn  his  topics 
with  the  beauties  of  an  animated  diction,  or  the  graces  of  a  vivid 
style.  His  thoughts  maybe  brilliant,  without  being  just ;  or  just, 
without  being  striking  ;  so  as  to  lead  to  the  bitter  sarcasm,  that 
his  discourse  contains  many  things  new,  and  many  things  true  ; 
but  the  new  is  not  true  ;  and  the  true  is  not  new.  The  least  of 
his  anxiety,  however,  should  be,  under  such  circumstances,  to  be 
original ;  for  who  can,  without  rashness,  imagine,  that,  after  the  lapse 
of  so  many  ages,  in  which  the  lives  of  so  many  of  the  brightest  of 
human  minds  have  been  devoted  to  the  cause  of  science  ;  who,  I 


DISCOURSE    IN    IIOLDEN    CHAPEL.  135 

say,  can,  without  rashness,  imagine,  that  little  of  truth  has  hitherto 
been  gathered,  and  that  her  ample  stores  are,  for  the  first  time, 
about  to  be  revealed  to  his  sight  ?  If  he  should  indulge  in  such  a 
vain  and  dreamy  self-complacency,  he  would  painfully  learn,  that 
other  minds  had  already  anticipated  almost  all  his  peculiarities  of 
opinion  and  comment ;  that  antiquity  had  exhausted  them  in  its 
captivating  literature,  never  yet  excelled,  and  perhaps  never  to  be 
excelled  ;  or  that  modern  science,  by  its  exact  experiments,  had  put 
to  flight  whatever  of  theory  might  float  round  his  own  physical 
researches. 

No  —  under  such  circumstances,  he  could  rely  securely  on  noth- 
ing, but  the  results  of  deep  and  various  study.  He  would  seek  to 
fill  his  mind  with  the  thoughts  of  others,  and  elevate  his  own  con- 
ceptions by  making  them  the  familiar  spirits  of  his  hours.  He 
would  feel  it  necessary  to  invigorate  his  own  powers,  by  giving 
his  early  and  his  later  vigils  to  the  profound  meditations  of  the  great 
men  of  other  days.  He  would  endeavour  to  comprehend  the  large 
conceptions  of  Lord  Bacon,  and,  by  following  the  method  of  induc- 
tion, pointed  out  by  his  wonderful  mind,  he  would  invite  nature  to 
disclose  her  mysteries,  and  aid  him  in  the  analysis  of  her  inexhaust- 
ible stores.  He  would  meditate  —  but  it  is  unnecessary  to  dwell 
on  such  considerations.  Enough  has  been  said,  and  more  than 
enough,  to  teach  us  the  difficulties  of  such  a  task;  and  to  demon- 
strate that  time,  as  well  as  diligence,  and  patience,  as  well  as 
strength,  are  necessary  to  the  successful  accomplishment 'of  such  an 
achievement. 

As  I  comprehend  it,  the  design  of  our  meetings  involves  no  such 
complexity  of  effort  or  attainment.  The  lectures,  which  belong  to 
the  brief  course  sketched  out  for  these  walls,  belong  to  a  humbler,  and 
more  facile  duty.  It  is  our  design,  not  to  sound  the  depths  of  any  por- 
tion of  science  or  literature,  but  to  bring  together  some  of  the  truths, 
which  lie  on  the  surface  ;  not  so  much  to  seek  for  buried  treasures, 
as  to  unfold  those,  which  are  known  and  approachable ;  not  so 
much  to  display  rarities,  as  to  bring  together  the  useful  and  the 
simple ;  to  present  what  may  not  be  unworthy  of  the  contemplations 
of  manhood,  but  yet  may  lie  within  the  reach  of  the  playfulness  of 
youth.  In  short,  we  are  here  to  listen  to  thoughts,  which  are  so 
familiar  to  the  wise,  that  they  come  almost  without  bidding,  and  are 
dismissed  without  question  or  criticism.  The  poet  has  told  us  in 
two  lines,  of  the  masculine  brevity  and  strength  of  the  best  days  of 


136  LITERARY    DISCOURSES. 

English  verse,  (borrowed  indeed  from  classical  sources,)  the  whole 
of  our  case  : — 

"  Content,  if  here  the  unlearn'd  their  wants  may  view, 
The  leara'd  reflect  on  what  before  they  knew." 

And  narrow  and  humble,  as  such  a  scheme  may  seem  to  those, 
whose  leisure  can  command  the  range  of  science,  or  whose  am- 
bition would  soar  to  the  boundaries  of  literature,  there  are  some 
local  considerations,  which  render  this  not  undesirable  or  unim- 
portant in  the  circle  of  our  families  and  friends.  We  live,  indeed, 
in  the  midst  of  academical  scenes,  where  learning  has  for  ages 
secured  the  public  reverence.  We  are  encompassed  with  the 
means  and  the  instruments  of  science  on  every  side.  A  noble 
library,  the  gift  of  the  munificence  of  the  living,  as  well  as  of  the 
dead,  looks  down  upon  us  with  its  ponderous  and  speaking  volumes. 
A  philosophical  apparatus,  which  at  once  lifts  our  thoughts  to  the 
heavens,  and  busies  us  with  the  motions  and  the  changes,  the  pow- 
ers and  the  laws,  of  the  material  universe,  is  within  our  apparent 
grasp.  We  need  not  call  upon  the  earth  to  open  upon  us  her 
minerals  and  geological  treasures;  for  our  cabinets  are  enriched  with 
many  of  her  most  valuable,  as  well  as  most  attractive  specimens. 
We  seem  as  if  within  the  very  purlieus  of  the  laboratory,  where 
chemistry,  no  longer  dealing  with  occult  arts  and  preternatural  sor- 
ceries, contents  herself  with  solving  and  resolving  bodies,  with  com- 
bining and  separating  the  elements  and  the  gases,  and  unfolding 
the  phenomena  of  light  and  heat,  and,  as  it  were,  giving  a  local 
habitation  and  a  name  to  her  endless  wonders.  The  very  bell,  which 
so  often  rouses  us  in  our  morning  slumbers,  seems  for  ever  vocal 
with  annunciations,  inviting  our  presence  to  the  rooms,  where  learned 
professors  pour  forth  their  stores  upon  the  interesting  topics  of  di- 
vinity, and  physics,  and  metaphysics,  and  rhetoric,  and  oratory,  and 
botany,  and  anatomy,  and  the  philosophy  of  nature,  and  the  myste- 
ries of  art.  And  yet,  in  the  midst  of  all  this  profusion,  our  families 
seem  in  some  danger  of  starving  for  want  of  intellectual  food.  If 
they  cannot  count  themselves  among  the  matriculated  ;  if  their  age, 
their  sex,  their  pursuits,  or  even  their  retiring  modesty,  forbid  them 
from  entering  upon  these  scenes  ;  they  are  compelled  to  forego  all 
that  curiosity  and  taste  would  covet,  to  nourish  their  home  resour- 
ces ;  and  they  are  left  to  consume  their  time  in  the  monotonous  round 
of  common  duties.  In  a  larger  society,  their  very  wants  would  soon 
work  out  a  remedy,  to  relieve  them   from  such   embarrassments. 


DISCOURSE    IN    HOLDEN    CHAPEL.  137 

The  evil  felt  in  the  family  circle  would  extend  to  the  head ;  and 
thus,  as  in  large  cities,  public  lectures  would  be  multiplied,  at  once 
to  stimulate  and  to  satisfy  the  desire  for  knowledge.  But  here,  if 
I  may  so  say,  the  very  evil  has  its  origin  in  the  ample  employments, 
and  devotion  to  science,  of  the  heads  of  our  families.  They,  who 
labor  abroad  with  so  much  success  and  ability,  require  all  their 
domestic  leisure  to  recruit  their  exhausted  spirits,  or  to  prepare 
themselves  for  ever  recurring  labors.  I  speak,  therefore,  to  the 
sober  sense  of  those,  whom  I  address,  when  I  say,  that  there 
seems  a  peculiar  duty  on  us  to  give  those  of  our  families  and 
friends,  who  are  necessarily  precluded  from  the  general  cultivation 
of  science,  some  chance  of  understanding  its  elements,  and  relishing 
its  truths,  by  the  only  adequate  methods,  —  the  demonstrations  of  the 
laboratory,  and  the  living  examples  of  the  lecture  room.  Truth 
from  the  lips  is  often  felt  with  double  sway;  but  truth,  confirmed  by 
experiment,  is  not  only  irresistible  in  its  conviction,  but  in  its  perma- 
nent impression  on  the  memory. 

With  reference,  therefore,  to  our  domestic  circles,  it  is  of  no 
small  importance  for  us  to  enlarge  the  sphere  of  innocent  pleasure  ; 
to  instruct  the  inquisitive  mind ;  and  to  furnish  new  sources  of 
thought  and  conversation,  by  observations  drawn  from  the  pro- 
cesses of  nature,  and  the  elegant  demonstrations  of  art. 

But  I  am  far  from  considering  this  as  the  sole,  though  it  may 
well  be  deemed  a  sufficient  motive  to  warm  our  hearts  and  kindle 
our  zeal.  There  are,  to  those  professedly  engaged  in  a  particular 
science,  many  motives  for  seeking  some  acquaintance  with  other 
sciences,  even  if  they  should  not  seem,  at  first,  of  a  kindred  character. 
I  do  not  here  allude  to  those  motives,  which  may  be  drawn  from 
the  abstract  value  of  learning,  or  the  practical  benefits  of  its  culti- 
vation. I  do  not  address  myself  to  the  pride  of  scholars,  as  such  ; 
or  to  the  ambition  of  those  minds,  which  deem  nothing  attained, 
while  there  yet  remains  any  thing  unattained  ;  which,  forgetting  the 
past,  press  onward  and  upward  for  the  prize  of  glory.  I  do  not 
attempt  to  shadow  forth,  even  in  outline,  the  praises  of  knowl- 
edge, as  they  have  been  vindicated  in  ancient  or  in  modern  times. 
There  are  some  places  and  some  circumstances,  in  which  such 
topics,  if  not  matters  of  impertinent  detail,  are,  at  least,  matters  of 
supererogation.  The  genius  of  the  place,  the  literary  atmosphere, 
which  we  breathe,  the  very  habits  of  our  lives  presuppose,  that  learn- 
ing, in  its  widest  sense,  human  and  divine,  is  at  once  our  pride  and 
our  guide  ;  the  companion  of  our  morning  walks,  and  of  our  evening 
18 


138  LITERARY    DISCOURSES. 

meditations ;  the  instructive  friend  of  our  youth  ;  the  support  and 
glory  of  our  old  age  ;  the  light,  that  beams  cheerfully  upon  us  in 
the  noonday  of  hope  and  joy ;  and  the  polestar,  that  sets  not,  and 
changes  not,  and  deceives  not,  in  the  midnight  hours  of  adversity, 
or  in  the  heavier  darkness,  whose  shadows  brood  over  the  valley  of 
death.  If  I  were  called  upon,  indeed,  to  intermingle  in  the  argu- 
ment of  such  topics,  I  might  well  distrust  my  own  resources,  and  I 
should  repose  myself  upon  the  sententious  wisdom  of  the  greatest 
of  modern  philosophers.  "  Studies,"  says  my  Lord  Bacon, 
"serve  for  delight,  for  ornament,  and  for  ability.  Their  chief  use 
for  delight  is  in  privateness  and  retiring ;  for  ornament,  is  in  dis- 
course ;  and  for  ability,  is  in  the  judgment  and  disposition  of  business. 
—  Histories  make  men  wise  ;  poets,  witty  ;  the  mathematics,  subtile ; 
natural  philosophy,  deep  ;  morals,  grave ;  logic  and  rhetoric,  able 
to  contend.  'Abcunt  stud  la  in  mores.' "  To  which  he  might  have 
added,  jurisprudence  enlarges,  invigorates,  and  chastens  the  judg- 
ment ;  and  theology  fills  the  soul  with  thoughts  of  time  and  eter- 
nity, and, 

"  Letting  down  the  golden  chain  from  high, 
Draws  every  mortal  upward  to  the  sky." 

But  one  motive,  upon  which  I  would  venture  to  insist,  is  drawn 
from  the  very  nature  of  academical  studies,  and  the  exclusive  zeal, 
which  they  are  calculated  to  nourish.  No  one  can  fail  to  remark, 
that  the  subdivision  of  intellectual,  as  well  as  of  manual  labor, 
though  it  tends  greatly  to  the  perfection  of  the  workmanship,  has, 
in  quite  as  striking  a  degree,  a  tendency,  if  not  to  narrow  the  mind, 
at  least,  to  close  its  vision  to  the  value  of  surrounding  objects.  In 
proportion  as  our  attainments  rise  in  a  favorite  pursuit,  it  grows 
in  importance,  in  intensity  of  attraction,  and  in  variety  of  interest. 
We  feel  our  own  minds  expanding  under  its  influence,  and  our  own 
curiosity  enlivened  and  warmed  by  its  developments.  We  have 
the  gratifying  consciousness  of  difficulties  overcome,  of  intellectual 
wealth  accumulated,  and  of  honorable  ambition  rewarded.  A 
spirit  of  exclusiveness  is  thus  awakened  and  cherished  ;  until,  at  last, 
the  appetite  increasing  with  what  it  feeds  on,  our  imaginations 
exaggerate  the  value  of  our  peculiar  labors  to  an  alarming  extent ; 
and,  in  the  extravagance  of  our  attachment,  we  look  down  with 
utter  indifference  upon  every  other  department  of  learning,  and 
deem  all  but  our  own,  weary,  stale,  flat,  and  unprofitable.  This 
dangerous  delusion  besets  the  scholar  and  the  devotee  of  science 
in  every  walk  of  life.    But  it  especially  besets  him  in  those  academ- 


DISCOURSE    IN    HOLDEN    CHAPEL.  139 

ical  scenes,  where  he  becomes  at  once  the  teacher  and  the 
taught;  where  he  is  perpetually  pouring  into  other  minds  the 
streams  of  his  own  knowledge,  and,  at  the  same  time,  is  as  perpet- 
ually compelled  to  widen  and  deepen  the  channels  of  his  own 
thoughts,  to  meet  the  constant  demands  of  such  an  exhausting 
flow. 

This  error  is  not  of  a  mere  by  speculative  nature,  but  is  often 
attended  with  practical  mischiefs.  The  mere  scholar,  intent  upon 
the  glorious  products  of  classical  literature,  dwells  with  a  fond  and 
overweening  delight  upon  the  wisdom,  and  the  beauty,  and  the  sub- 
limity of  the  ancients,  until  modern  learning  seems  to  him  but  the 
paslework  of  imitative  jewelry,  compared  with  the  pure  sparkling  of 
the  diamond,  or  the  pellucid  crystallizations  of  the  emerald.  He  is 
content,  if  I  may  so  say,  to  dream  with  antiquity,  and  to  live  with 
past  ages  ;  forgetful  of  the  sober  realities  of  his  own  life,  and  that 
he  yet  walks  this  nether  sphere.  The  devotee  of  physical  science, 
absorbed  in  its  splendid  discoveries,  and  in  its  new  and  ever  varying 
details,  compelling  nature,  as  it  were,  to  expound  her  hidden  con- 
trivances to  him,  and  to  answer  his  untiring  interrogatories,  delights 
in  the  consciousness  of  this  exercise  of  power,  and  looks  with 
amazement  on  him,  who,  with  equal  enthusiasm,  traces  out  the  laws 
of  the  mind,  and  gathers  up  its  finer  filaments  and  associations,  and 
touches  its  secret  springs,  and  unfolds  its  admirable  faculties.  The 
mathematician,  dealing  with  facts  of  another  kind,  which  rest  on 
demonstrative  evidence,  and  ascending  by  strict  analysis  to  the 
most  extraordinary  results,  lying  apparently  beyond  the  reach  of 
human  genius,  acquires  a  preternatural  love  for  certainties  of  this 
sort,  and  feels,  at  times,  almost  as  if  matter  were  made  only  to  exer- 
cise his  ingenuity  in  searching  out  the  laws  of  gravitation,  and  in 
subjecting  the  motions  of  the  earth  and  the  heavens  to  his  sublime 
calculus.  On  the  other  hand,  the  votary  of  jurisprudence,  absorbed 
in  the  actual  business  of  human  life,  and  the  administration  of  human 
laws,  in  which  probabilities  and  presumptions  are  the  principal  instru- 
ments to  arrive  at  his  conclusions,  is  apt  to  place  all  other  sciences 
at  an  immeasurable  distance  below  his  own,  which  deals  with  moral 
evidence,  and  to  boast  of  his  common  sense,  which,  though  no 
science,  is,  in  his  estimate,  fairly  worth  the  seven. 

Thus  each,  in  his  turn,  from  the  common  fascination  of  his  own 
peculiar  profession  or  study,  is  but  too  apt  to  become  generally 
insensible  or  indifferent  to  all  others.  Instead  of  gathering  new 
strength  from  their  invigorating  truths,  or  storing  his  mind  with  their 


140  LITERARY    DISCOURSES. 

treasures  for  use  or  illustration,  each  is  but  too  apt  to  walk  in  his 
own  round  of  close  and  solitary  pleasure.  If,  therefore,  no  other 
motive  could  be  found  for  these  lectures  of  mutual  instruction,  but 
the  desire  to  draw  the  sciences,  as  it  were,  in  open  contact  and 
contrast  with  each  other,  that  alone,  it  seems  to  me,  ought  to  furnish 
a  sufficient  inducement,  and  should  stimulate  us  to  a  sincere  en- 
couragement of  the  design. 

And  this  leads  me  to  remark,  in  the  next  place,  that  the  sciences 
are  of  a  social  nature,  and  flourish  best  in  the  neighbourhood  of  each 
other.  They  furnish  literature  with  some  of  its  most  engaging  ima- 
gery, as  well  as  with  some  of  its  most  eiFective  instruction.  In  return, 
they  receive  an  infinite  variety  of  aids  from  literature,  not  merely  by 
way  of  ornament,  but  by  profound  reflection,  and  close  and  vigorous 
reasoning.  There  is  not,  within  the  compass  of  human  learning,  a 
single  department,  which  does  not  connect  itself  with  every  other ; 
which  does  not  derive  illustrations  of  its  own  truths,  and  mingle  its 
own  results  with  every  other.  One  of  the  admirable  dispensations 
of  Providence  is,  thus  to  make  every  human  attainment  pour  in  its 
tribute  to  the  common  stream  of  knowledge,  so  as  to  widen  the 
common  means  of  social  intercourse  and  social  happiness.  What- 
ever be  the  science,  it  becomes  cold  and  cheerless,  when  it  casts 
around  a  sepulchral  light,  in  its  own  solitary  and  noiseless  cell. 
It  is  when  it  becomes  connected  with  other  sciences,  reflecting  its 
own  radiance  on  other  objects,  and  receiving  again  from  them  their 
own  brilliant  lights,  that  it  warms,  and  elevates,  and  enlarges  the 
human  soul.  A  truth  is  but  half  felt,  when  it  stands  alone.  It  is 
only  when  it  belongs  to  a  cluster,  that  it  incites  the  intellectual 
appetite,  and  gives  a  keener  relish  to  other  food,  by  the  richness,  as 
well  as  the  delicacy  of  its  flavor. 

One  of  the  most  popular  journals  of  our  day  has  lately  declared, 
in  a  bold  and  peremptory  tone,  that  it  had  not  "  any  hesitation  in 
adding,  that,  within  the  last  fifteen  years,  not  a  single  discovery  or 
invention  of  prominent  interest  has  been  made  in  our  colleges,  and 
that  there  is  not  one  man  in  all  the  eight  universities  of  Great 
Britain,  who  is  at  present  known  to  be  engaged  in  any  train  of 
original  research."  *  Without  yielding  to  the  truth  of  this  unquali- 
fied remark,  it  may  be  justly  stated,  that,  if  there  be  any  color  for 
it,  it  arises  from  the  dissociation  of  science  and  literature,  which  is 
too  apt  to  be  nourished  in  those  universities,  by  the  single  pursuits 

*  Quarterly  Review,  October,  1830,  p.  327. 


DISCOURSE    IN    HOLDEN    CHAPEL.  Ml 

of  their  eminent  professors.  They  are  not  compelled  to  think 
together,  or  to  warm  their  genius  by  broad  and  comprehensive 
views  of  physical  and  intellectual  science. 

But  there  are  other  considerations,  not  of  an  academical  nature, 
and  belonging  to  us,  in  common  with  all  our  race,  which  ought  not, 
on  an  occasion  of  this  sort,  to  be  wholly  passed  over.  We  live  in 
an  age  full  of  intellectual  excitement.  It  is  not  with  us,  as  it  was 
in  former  times,  when  science  belonged  to  solitary  studies,  or  philo- 
sophical ease,  or  antiquarian  curiosity.  It  has  escaped  from  the 
closet,  and  become  an  habitual  accompaniment  of  every  department 
of  life.  It  comes,  emphatically,  home  to  men's  business  and  bosoms. 
It  accosts  us  equally  in  the  highways  and  byways  of  life.  We 
meet  it  in  the  idle  walk,  and  in  the  crowded  street ;  in  the  very 
atmosphere  we  breathe,  in  the  earth  we  tread  on,  in  the  ocean 
we  traverse,  and  on  the  rivers  we  navigate.  It  visits  the  workshop 
of  the  mechanic,  the  laboratory  of  the  apothecary,  the  chambers 
of  the  engraver,  the  vats  of  the  dyer,  the  noisy  haunts  of  the 
spinning  jenny,  and  the  noiseless  retreats  of  the  bleachery.  It 
seems  a  very  spirit  of  all  work,  assuming  all  shapes,  and  figuring 
out  all  sorts  of  wonders,  in  that  epitome  of  a  world,  a  factory. 
It  plays  about  us  in  the  very  smoke  of  the  glasshouse,  in  the  gas 
lights  of  our  shops  and  theatres,  in  the  beautiful  coruscations  of 
nature,  and  the  exquisite  imitations  of  art.  It  crosses  our  paths  in 
the  long,  winding  canal,  in  the  busy  railroad,  in  the  flying  steamboat, 
and  in  the  gay  and  gallant  merchant  ship,  wafting  its  products  to 
every  clime.  It  enters  our  houses,  and  sits  clown  at  our  firesides, 
and  lights  up  our  conversations,  and  revels  at  our  banquets.  Not  an 
ice-cream  meets  our  lips,  which  has  not  felt  the  freezing  coldness 
of  its  hand  ;  not  a  vapor  ascends,  which  may  not  be  perfumed  by 
its  cosmetics  and  essences.  One  is  almost  tempted  to  say,  that  the 
whole  world  seems  in  a  blaze  ;  and  that  the  professors  of  science  and 
the  dealers  in  the  arts  surround  us  by  their  magical  circles,  and 
compel  us  to  remain  captives  in  the  spells  of  their  witchcraft. 

Under  such  circumstances,  we  are  scarcely  permitted  to  remain 
ignorant  of  principles,  while  we  are  encircled  by  practical  applica- 
tions of  them.  If  curiosity  does  not  stimulate  us  to  knowledge,  we 
are  almost  compelled  to  ask  it  for  safety.  Our  very  ignorance,  if  it 
does  not  betray  us  into  peril,  meets  us  like  a  spectre,  at  every  turn. 
We  are  liable  to  be  questioned  on  every  side,  and  are  not  permitted 
to  play  the  part  of  mutes.  In  short,  we  are  driven  to  the  necessity 
of  confessing  our  ignorance,  and  avoiding  the  censure,  or  manfully 


142  LITERARY    DISCOURSES. 

mcetin0"  the  topic,  we  are  obliged  to  redeem  our  credit  by  syllabling 
out  the  first  outlines  of  science. 

And  yet,  with  the  busy  employments  and  crowded  interests  of 
society,  how  few  can  find  leisure  for  collateral  studies !  There  is 
not  a  single  branch  of  science  or  literature,  which  is  not,  at  the 
present  day,  so  extensive  in  its  reach,  that  to  master  it  requires 
a  long  life  of  patient  labor.  Nay,  when  such  a  life  is  at  its  close, 
the  student  seems  but  just  arrived  on  the  threshold  of  learning. 
He  has  clone  little  more  than  to  climb  up  a  hillock,  and  look  to 
the  far  distant  valley,  beyond  which  lie  the  mountains  he  would 
ascend,  that  he  may  survey  a  wider  scene,  and  inhale  a  purer  at- 
mosphere. We  seem,  therefore,  to  be  surrounded  on  every  side 
by  difficulties.  We  must  learn  what  belongs  to  our  own  vocation,  in 
order  to  attain  the  comforts  and  the  honors  of  life.  We  must  learn 
enough  of  what  belongs  to  other  vocations,  that  we  may  mingle  in 
the  interests,  and  partake  the  triumphs,  and  relish  the  pleasures  of 
society.  We  must  read  something  of  other  literature,  besides  that 
which  belongs  to  our  own  pursuits,  that  we  may  understand  the 
daily,  and  the  weekly,  and  the  monthly,  and  the  quarterly  journals, 
which  crowd  our  tables.  We  must  gather  up  something  of  other  sci- 
ences, that  we  may  not  seem  to  belong  to  the  class  of  mummies,  or 
the  dead  relics  of  former  ages.  We  must  learn  how  to  thread  some 
of  the  labyrinths  of  knowledge,  in  which  we  are  compelled  to  wan- 
der, lest  we  should  be  buried  alive  in  its  artificial  catacombs.  In 
short,  we  must  be  content  to  be  superficial  in  many  things,  if  we 
would  be  wise  in  the  ways  of  this  world  ;  and  yet,  without  this  wis- 
dom, we  shall  scarcely  find  ourselves,  in  a  temporal  sense,  in  the 
ways  of  pleasantness,  or  the  paths  of  peace. 

It  seems  to  me,  that,  under  such  circumstances,  the  delivery  of 
public  lectures,  by  concentrating  what  is  most  valuable  in  science, 
and  most  interesting  in  art  and  literature  ;  by  gathering  what  comes 
home  most  closely  to  our  common  wants,  and  illustrates  our  common 
pursuits,  and  varies  our  common  enjoyments  ;  by  shortening  the  road, 
and  clearing  the  obstructions,  and  smoothing  the  ruggedness  of  the 
journey  ;  accomplishes  a  most  valuable  purpose.  It  has  been  very 
recently  said,  in  the  bitterness  of  sarcasm,  that,  "  in  this  age  of  ex- 
tended and  diluted  knowledge,  popular  science  has  become  the 
staple  of  an  extensive  trade,  in  which  charlatans  are  the  principal 
dealers."*    If  this  be  true,  in  any,  however  qualified,  sense,  it  only 

*  Quarterly  Review,  Oct.  1830.  p  326. 


DISCOURSE    IN    IIOLDEN    CHAPEL.  143 

proves  the  intrinsic  value  of  the  genuine  commodity ;  and  the  in- 
satiable thirst  for  knowledge,  which  is  abroad  in  the  whole  commu- 
nity. It  is  a  fact  honorable  to  the  spirit  of  the  age,  and  brings 
neither  our  taste  nor  our  judgment  into  discredit.  It  is  in  vain  to 
contend,  that,  because  we  cannot  find  time  to  master  all  science, 
therefore  we  should  seek  for  none  ;  that,  because  we  cannot  under- 
stand all  the  details,  we  should  never  learn  the  elements  ;  that  we 
should  seek  to  know  every  thing,  or  know  nothing ;  that  one  should 
stop  short  at  the  first  step  in  knowledge,  because  he  cannot  com- 
pass the  universe.  The  same  line  of  argument  would  go  to  the 
utter  prostration  of  all  intellectual  attainments.  It  would  furnish  to 
ignorance  its  best  vindication,  and  to  indolence  its  boldest  excuse. 
We  should  not  consult  a  library,  because  it  were  a  vain  attempt  to 
read  all  the  volumes ;  we  should  not  hear  a  lecture,  because  it 
did  not  embrace  and  exhaust  all  the  science ;  we  should  disdain  to 
hear  one,  who  taught  important  truths,  because  he  had  not  himself 
travelled  round  the  farthest  limits  of  human  knowledge. 

A  just  estimate  of  human  life  and  human  wants  will  lead  us  to  far 
different  conclusions.  We  are  perpetually  admonished,  that  life  is 
short,  and  art  is  long,  and  nature  is  inexhaustible.  Our  destiny 
allows  us,  at  best,  but  a  narrow  choice  of  objects  of  pursuit ;  and  our 
leisure,  brief  and  transient  as  it  is,  admits  of  little  variety  of  indul- 
gence. We  must  content  ourselves  with  getting  knowledge  by 
snatches ;  with  gathering  it  up  in  fragments ;  with  seizing  on  prin- 
ciples and  results.  We  must  welcome  every  mode,  which  abridges 
labor,  and  supersedes  personal  search.  We  must  take  the  easiest 
demonstrations  and  the  most  simple  enunciations.  We  must  follow 
that,  which  is  the  ultimate  object  of  all  improved  processes  in  the 
arts,  to  save  labor,  insure  certainty,  and  husband  time  and  resour- 
ces. More  than  this  can  belong  to  the  attainments  of  few,  even  of 
the  most  gifted  minds.  Less  than  this  ought  not  to  satisfy  any  one, 
who  is  conscious  of  the  end  and  aim  of  his  being  ;  and  who  feels, 
that,  in  the  proper  pursuit  of  happiness  here,  he  begins  the  race  of 
immortality. 

I  have  thus  far  spoken  principally  of  the  advantages  of  lectures 
upon  the  elements  of  science.  But  the  same  remarks  apply  with 
equal  force  to  select  disquisitions  upon  literary  topics  of  general 
interest.  In  truth,  literature  is  so  abundant  in  its  products  of  all 
sorts,  whether  for  instruction,  or  pleasure,  or  ornament ;  whether 
to  gratify  the  taste,  or  improve  the  morals,  or  enlarge  the  understand- 
ing ;  whether  for  the  purpose  of  civil  duties,  or  political  education,  or 


144  LITERARY    DISCOURSES. 

intellectual  discipline  ;  that  the  task  of  selection  is  of  itself  not  unat- 
tended with  difficulties,  and  requires  talents  of  no  ordinary  character. 
The  literature  of  a  single  language,  ancient  or  modern,  is  perhaps 
beyond  the  grasp  of  any  single  mind;  hut  the  literature  of  all  lan- 
guages, or  even  of  those  within  the  pale  of  European  fellowship, 
would  require  more  than  an  Atlas  to  carry  it  on  his  shoulders.  All 
that  can  be  done,  under  such  circumstances,  is  to  follow  Lord  Ba- 
con's advice,  and  "  read  by  deputy." 

But  what  strikes  me  of  quite  as  much  value,  in  such  enlarged 
studies,  as  any  which  has  been  mentioned,  is  the  delightful  contem- 
plation it  affords  us  of  the  successful  labors  of  other  minds.  We 
are  brought  into  direct  and  active  sympathy  with  men  of  genius  in 
every  age.  We  become  witnesses  of  their  toils,  their  disappoint- 
ments, and  their  sufferings.  We  learn  the  slow  and  tedious  steps,  by 
which  eminence  has  been  acquired.  We  see  the  result  of  patient 
investigation  and  cautious  sagacity.  We  trace  the  progress  of  dis- 
covery and  invention,  from  the  first  clumsy  process,  or  the  first 
accidental  guess,  to  the  last  glorious  result.  We  see  how  the 
slightest  incident  leads  gradually  on  to  the  most  sublime  truths  ; 
how  facts,  apparently  the  most  remote,  converge  to  the  same 
ultimate  point ;  how  human  ingenuity  conquers  obstacles  appa- 
rently insurmountable  ;  and  how  human  enterprise  gathers  courage 
even  from  its  very  defeats.  What  can  be  more  curious,  or  more 
affecting,  than  the  history  of  many  discoveries  ?  In  the  midst  of 
poverty  and  disappointment,  the  discoverer  is  sometimes  condemned 
to  pursue  his  solitary  studies.  He  wastes  his  health  and  his  re- 
sources in  experiments,  which  seem  ever  on  the  point  of  success, 
and  yet  mock  his  toil  and  delude  his  hopes.  At  length  the  dis- 
covery comes.  But  does  it  always  reward  his  toil  ?  No  —  it  but 
too  often  happens,  that  it  is  received  by  the  public  with  a  cold, 
reluctant  indifference  ;  or  is  put  in  operation,  to  his  ruin,  by  some 
more  thrifty  competitor.  Sometimes,  indeed,  as  in  the  case  of 
Galileo,  it  subjects  him  to  a  prison  ;  sometimes  it  sends  him,  like 
Dolland,  to  his  grave,  "unwept,  unhonored,  and  unsung";  some- 
times it  leaves  him,  like  Fulton,  to  witness  fortunes  reared  by 
others  upon  his  labors,  and  yet,  to  find  himself  destined  to  fall  a 
sacrifice  to  the  vindication  of  his  right  to  his  own  discovery.  These 
are  some  of  the  misfortunes,  which  affect  us  with  lively  sympathies 
for  the  benefactors  of  mankind.  On  the  other  hand,  we  are 
warmed,  and  sometimes  dazzled,  by  the  brilliant  successes  of  genius. 
Who  lias  not  felt  his  soul  melt  within  him,  at  the  liberal  ease  and 


DISCOURSE    IN    HOLDEN    CHAPEL.  145 

modest  competence,  which  crowned  the  life  of  Newton  ?  Who  has 
not  rejoiced  in  the  opulence,  which  followed  upon  the  labors  of 
Watt,  and  Arkwright,  and  Franklin,  and  Davy  ? 

But  that,  which  fills  us  with  the  deepest  admiration,  is  the  won- 
derful workings  of  genius,  in  its  own  silent  studies  and  its  inmost 
feelings.  We  see  how  it  learns  to  thread  the  mazes  of  nature,  and 
unfold  her  laws  ;  at  one  time,  tracing  out  the  hidden  causes,  which 
link  time  to  eternity,  and  earth  to  heaven  ;  at  another  time,  descend- 
ing to  the  most  minute  operations  of  her  power,  in  the  dark  mine, 
or  the  dripping  cave,  or  the  invisible  air  ;  and,  at  still  another 
time,  applying  its  subtile  analysis  to  the  decomposition  of  bodies, 
until  at  last  we  seem  in  the  very  presence  of  the  monads,  whose  mi- 
raculous vitality  startles  us  into  terror  of  our  own  delicate  structure. 

It  is  in  the  contemplation  of  such  minds,  and  such  discoveries, 
that  we  lose  all  grovelling  thoughts  and  vulgar  passions.  We  rise 
into  a  higher  moral  grandeur  of  desire.  We  relish  holier  views  of 
our  destiny.  We  see,  that  these  are  but  the  first  fruits,  or  rather 
buds,  of  immortality.  We  enjoy  the  consciousness,  that  they  are 
but  emanations  from  that  Almighty  Being,  who  has  formed  and 
fashioned  us  from  the  dust,  and  breathed  into  us  a  portion  of  his 
own  uncreated  and  eternal  spirit. 

And  this  leads  me  to  remark,  in  the  last  place,  that  there  is 
nothing  so  well  adapted  to  make  us  feel  a  sincere  and  glowing  de- 
votion, such  a  lively  sense  of  a  present  Deity,  as  a  wide  survey  of 
the  operations  of  nature.  It  is  not  by  a  lew  reflections  alone,  on 
the  order  and  harmony  of  the  visible  universe,  that  we  are  brought 
to  a  just  conception  of  the  existence  or  attributes  of  God.  It  may 
even  be  doubtful,  if  the  demonstrations  of  wisdom  and  design  are 
more  affecting,  or  more  striking,  in  the  power  of  the  unsleeping 
ocean,  or  the  rushing  cataract,  or  the  terrific  earthquake,  or  the 
blazing  volcano,  than  in  the  silent  forms  of  crystallization,  the  infi- 
nite combinations  of  the  gases,  the  microscopic  perfection  of  the 
insect  tribes,  or  the  almost  superhuman  contrivances,  by  which 
the  lowest  order  of  beings  builds  up  its  coral  continent  for  the 
dwellingplaces  of  man.  Who  would  imagine,  if  he  were  not  told, 
that  the  very  law,  which  retains  the  planets  in  their  spheres,  en- 
ables the  fly,  by  means  of  the  pressure  of  the  atmosphere,  to  walk 
securely  on  the  ceiling  over  our  heads,  by  an  artificial  vacuum 
insfinctively  made  by  its  feet?  that  the  very  oxygen,  which  lights 
up  and  sustains  the  ignition  of  matter,  is  the  same  admirable  prin- 
ciple, which  carries  on  the  circulations  of  our  own  blood,  and  keeps 
19 


146  LITERARY    DISCOURSES. 

up,  in  scarcely  a  figurative  sense,  the  steady  flame  of  life  ?  The 
truth  is,  that,  the  farther  our  researches  extend,  the  wider  our 
philosophy  explores,  the  deeper  our  discoveries  penetrate,  the  more 
are  we  struck  with  the  evidence  of  almighty  contrivance,  design, 
and  power.  If  we  take  but  a  drop  of  water,  we  find  it  crowded 
with  myriads  of  beings,  deriving  life,  and  sustenance,  and  pleasure, 
from  its  uncounted  particles.  If  we  take  the  wing  of  the  minutest 
insect,  we  know  that  its  slender  fibres  and  its  glossy  down  are 
perforated  by  thousands  of  vessels,  and  nerves,  and  filaments, 
which  convey  its  appropriate  nutriment,  and  impart  to  it  its 
beautiful  colors.  Not  a  single  function  is  misplaced  ;  not  a  single 
ligature  is  superfluous.  Nay,  perhaps  it  is  not  too  bold  an 
assertion,  which  has  sometimes  been  made,  that  such  are  the  mu- 
tual ties  and  dependencies  of  things,  such  the  laws  of  action  and 
reaction,  of  attractive  support  and  repulsive  effort,  that  not  a  single* 
atom  could  be  struck  out  of  existence,  without  involving  the  de- 
struction of  the  universe. 

If  these  humble  efforts  should  answer  no  other  purpose,  than  thus 
to  draw  us  to  a  more  enlarged  and  varied  contemplation  of  our  rela- 
tions to  the  first  Almighty  Cause,  they  would  not  be  without  their 
reward.  They  would  awaken  a  livelier  gratitude,  and  more  cheer- 
ful confidence  towards  the  Author  of  our  being.  They  would 
create  a  new  sense  of  the  dignity  of  intellectual  pursuits,  and  of 
the  powers  of  human  genius.  They  would  increase  our  aspirations 
after  that  better  world,  where  darkness  shall  no  longer  cover  our 
paths,  but  the  light  of  truth  thall  break  upon  our  souls  with  un- 
clouded glory  and  majesty. 


LECTURE 


ON    THE    SCIENCE    OF    GOVERNMENT;   DELIVERED    BEFORE   THE   AMERICAN 
INSTITUTE  OF  INSTRUCTION,  AUGUST,  1831. 


The  objects  of  the  American  Institute  of  Instruction  are,  as  I 
understand  them,  in  a  great  measure,  if  not  altogether,  of  a  practi- 
cal nature.  Under  such  circumstances,  the  time  passed  here  might 
well  be  deemed  ill  employed,  if  any  attempt  were  now  made  merely 
to  bring  together  topics  for  literary  amusement  and  recreation  ;  or  an 
elaborate  discourse,  designed  to  gratify  the  taste  of  scholars,  should 
be  substituted  for  plain,  direct,  and  grave  discussion.  I  shall,  there- 
fore, proceed  at  once  to  the  task,  which  has  been  assigned  to  me 
on  the  present  occasion,  and  endeavour  to  bring  before  you  such 
views  as  have  occurred  to  me,  touching  "  The  Science  of  Govern- 
ment, as  a  Branch  of  popular  Education." 

The  subject  naturally  divides  itself  into  three  principal  heads  of 
inquiry.  In  the  first  place,  is  the  science  of  government  of  suffi- 
cient general  importance  and  utility,  to  be  taught,  as  a  branch  of 
popular  education  ?  In  the  next  place,  if  it  be  of  such  importance 
and  utility,  is  it  capable  of  being  so  taught  ?  And,  in  the  third 
place,  if  capable  of  being  so  taught,  what  is  the  best  or  most 
appropriate  method  of  instruction  ?  My  object  is  to  lay  before 
you  some  considerations  on  these  topics,  in  the  order  in  which  they 
are  stated  ;  and  I  think,  that  I  do  not  overvalue  them,  when  I  assert, 
that  there  are  few  questions  of  a  wider  or  deeper  interest,  and  few 
of  a  more  comprehensive  and  enlarged  philosophy,  so  far  as  phi- 
losophy bears  upon  the  general  concerns  of  human  life. 

First,  then,  as  to  the  importance  and  utility  of  the  science  of 
government.  Of  course,  I  do  not  intend  here  to  speak  of  the 
necessity  of  government  in  the  abstract,  as  the  only  social  bond  of 
human  society.  There  are  few  men  in  our  age,  who  are  disposed 
to  engage   in  the  vindication  of  what  some   are   pleased   to  call 


148  LITERARY    DISCOURSES. 

natural  society,  as  contradistinguished  from  political  society  ;  or  to 
pour  forth  elaborate  praises  in  favor  of  savage  life,  as  superior  to, 
and  more  attractive  than,  social  life.  There  is  little  occasion  now 
to  address  visionaries  of  this  sort  ;  and  if  there  were,  this  is  not  the 
time  or  the  place  to  meet  their  vague  and  declamatory  assevera- 
tions. It  is  to  the  science  of  government,  that  our  attention  is  to 
be  drawn.  The  question  is  not,  whether  any  government  ought  to 
be  established  ;  but  what  form  of  government  is  best  adapted  to 
promote  the  happiness,  and  secure  the  rights  and  interests,  of  the 
people,  upon  whom  it  is  to  act.  The  science  of  government, 
therefore,  involves  the  consideration  of  the  true  ends  of  government, 
and  the  means,  by  which  those  ends  can  be  best  achieved  or  pro- 
moted. And  in  this  view  it  may  be  truly  said  to  be  the  most 
intricate  and  abstruse  of  all  human  inquiries  ;  since  it  draws  within 
its  scope  all  the  various  concerns  and  relations  of  man,  and  must 
perpetually  reason  from  the  imperfect  experience  of  the  past,  for 
the  boundless  contingencies  of  the  future.  The  mo?t,  that  we  can 
hope  to  do,  under  such  circumstances,  is,  to  make  nearer  and  nearer 
approximations  to  truth,  without  our  ever  being  certain  of  having 
arrived  at  it  in  a  positive  form. 

This  view  of  the  matter  is  not  very  soothing  to  human  pride,  or 
human  ambition.  And  yet  the  history  of  human  experience,  for 
four  thousand  years,  has  done  little  more  than  to  teach  us  the 
melancholy  truth,  that  we  are  as  yet  but  in  the  infancy  of  the 
science  ;  and  that  most  of  its  great  problems  remain  as  yet  unsolved  ; 
or  have  been  thus  far  solved,  only  to  mortify  human  vanity,  and 
disappoint  the  spirit  of  political  prophecy.  Aristotle  and  Cicero, 
the  great  masters  of  antiquity  in  political  philosophy,  exhausted 
their  own  ample  resources,  rather  in  the  suggestion  of  hints,  than 
in  the  formation  of  systems.  They  pointed  out  what  had  been,  or 
then  were,  the  forms  and  principles  of  existing  governments,  rather 
to  check  our  ardor,  than  to  encourage  our  hopes ;  rather  to  instruct 
us  in  our  duties  and  difficulties,  than  to  inflame  our  zeal,  or  confirm 
our  theories.  They  took  as  little  courage  from  the  speculations  of 
Plato,  pouring  out  his  fine  genius  upon  his  own  imaginary  republic, 
as  modern  times  have  from  examining  the  Utopia  of  Sir  Thomas 
Moore,  or  the  cold  and  impracticable  reveries  of  one  of  the  most 
accomplished  men  of  the  last  age,  David  Hume. 

The  truth  is,  that  the  study  of  the  principles  of  government  is 
the  most  profound  and  exhausting  of  any,  which  can  engage  the 
human  mind.     Tt  admits  of  very  few   fixed  and  inflexible  rules  ;  it 


LECTURE    ON    THE    SCIENCE    OF    GOVERNMENT.  149 

is  open  to  perplexing  doubts  and  questions,  in  most  of  its  elements ; 
and  it  rarely  admits  of  annunciations  of  universal  application.  The 
principles,  best  adapted  to  the  wants  and  interests  of  one  age  or 
country,  can  scarcely  be  applied  to  another  age  or  country,  without 
essential  modifications,  and  perhaps  even  without  strong  infusions  of 
opposite  principles.  The  different  habits,  manners,  institutions,  cli- 
mates, employments,  characters,  passions,  and  even  prejudices  and 
propensities,  of  different  nations,  present  almost  insurmountable  ob- 
stacles to  any  uniform  system,  independently  of  the  large  grounds  of 
diversity,  from  their  relative  intelligence,  relative  local  position,  and 
relative  moral  advancement.  Any  attempt,  to  force  upon  all  nations 
the  same  modifications  and  forms  of  government,  would  be  founded 
in  just  as  little  wisdom  and  sound  policy,  as  to  force  upon  all  per- 
sons the  same  food,  and  the  same  pursuits;  to  compel  the  Green- 
landers  to  cultivate  vineyards,  the  Asiatics  to  fish  in  the  Arctic  seas, 
or  the  polished  inhabitants  of  the  south  of  Europe  to  clothe  them- 
selves in  bearskins,  and  live  upon  Iceland  moss  and  whale  oil. 

Government,  therefore,  in  a  just  sense,  is,  if  one  may  so  say, 
the  science  of  adaptations  —  variable  in  its  elements,  dependent 
upon  circumstances,  and  incapable  of  a  rigid  mathematical  demon- 
stration. The  question,  then,  What  form  of  government  is  best  ? 
can  never  be  satisfactorily  answered,  until  we  have  ascertained,  for 
what  people  it  is  designed  ;  and  then  it  can  be  answered  only  by 
the  closest  survey  of  all  the  peculiarities  of  their  condition,  moral, 
intellectual,  and  physical.  And  when  we  have  mastered  all  these, 
(if  they  are  capable  of  any  absolute  mastery,)  we  have  then  but 
arrived  at  the  threshold  of  our  inquiries.  For,  as  government  is 
not  a  thing  for  an  hour  or  a  day,  but  is,  or  ought  to  be,  arranged 
for  permanence,  as  well  as  for  convenience  of  action,  the  future 
must  be  foreseen  and  provided  for,  as  well  as  the  present.  The 
changes  in  society,  which  are  for  ever  silently,  but  irresistibly,  going 
on ;  the  ever  diversified  employments  of  industry ;  the  relative 
advancement  and  decline  of  commerce,  manufactures,  agriculture, 
and  the  liberal  arts;  the  gradual  alterations  of  habits,  manners,  and 
tastes ;  the  dangers,  in  one  age,  from  restless  enterprise  and  mili- 
tary ambition,  in  another  age,  from  popular  excitements  and  an 
oppressive  poverty,  and  in  another  age,  from  the  corrupting  influence 
of  wealth  and  the  degrading  fascinations  of  luxury  ;  —  all  these  are 
to  be  examined  and  guarded  against,  with  a  wisdom  so  comprehen- 
sive, that  it  must  task  the  greatest  minds  and  the  most  mature 
experience. 


150  LITERARY    DISCOURSES. 

Struck  with  considerations  of  this  sort,  and  with  the  difficulties 

inherent  in  the  subject,  there  are  not  a  few  men  among  those,  who 

aim  to  guide  the  opinions  of  others,  who  have  adopted  the  erroneous 

and  alarming-  doctrine,  so  forcibly  expressed  by   Pope,  in  a  single 

couplet  : 

"  For  forms  of  government  let  fools  contest; 
Whate'er  is  best  administered,  is  best." 

As  if  every  thing  were  to  be  left  to  the  arbitrary  will  and  caprice 
of  rulers ;  and  the  whole  interests  of  society  were  to  be  put  at  risk 
upon  the  personal  character  of  those,  who  constitute  the  existing 
government.  According  to  this  theory,  there  is  no  difference 
between  an  absolute  despotism,  and  a  well  organized  republic  ; 
between  the  securities  of  a  government  of  checks  and  balances, 
and  a  division  of  powers,  and  those  of  a  sovereignty,  irresistible 
and  unresisted  ;  between  the  summary  justice  of  a  Turkish  Sultan, 
and  the  moderated  councils  of  a  representative  assembly. 

Nay,  the  doctrine  has  been  pressed  to  a  farther  extent,  not  merely 
by  those,  who  constitute,  at  all  times,  the  regular  advocates  of 
public  abuses,  and  the  flatterers  of  power;  but  by  men  of  higher 
characters,  whose  morals  have  graced,  and  whose  philosophy  has 
instructed  the  age,  in  which  they  lived.  The  combined  genius  of 
Goldsmith  and  Johnson  arrived  at  the  calm  conclusion,  that  the 
mass  of  the  people  could  have  little  reason  to  complain  of  any 
exercises  of  tyranny,  since  the  latter  rarely  reached  the  obscurity 
and  retirement  of  private  life.  They  have  taught  us  this  great 
conservative  lesson,  so  deadening  to  all  reforms  and  all  improve- 
ments, with  all  the  persuasive  eloquence  of  poetry. 

"  In  every  government,  though  terrors  reign, 
Though  tyrant  kings  and  tyrant  laws  restrain, 
How  small,  of  all,  (bat  human  hearts  endure, 
That  part,  which  laws  or  kings  can  cause  or  cure  !  " 

If  this  were  true,  it  would,  indeed,  be  of  very  little  consequence 
to  busy  ourselves  about  the  forms  or  objects  of  government.  The 
subject  might  amuse  our  leisure  hours,  but  could  scarcely  touch  our 
practical  interests.  But  the  truth  is  far  otherwise.  The  great 
mass  of  human  calamities,  in  all  ages,  has  been  the  result  of  bad 
government,  or  ill  adjusted  government ;  of  a  capricious  exercise 
of  power,  a  fluctuating  public  policy,  a  degrading  tyranny,  or  a 
desolating  ambition.  Bad  laws  and  bad  institutions  have  gradually 
sunk  the  peasantry  and  artisans  of  most  countries  to  a  harsh  and 
abject   poverty  ;   and   involved  them   in   sufferings,  as  varied   and 


LECTURE    ON    THE    SCIENCE    OF    GOVERNMENT.  151 

overwhelming,  as  any  inflicted  by  the  desolating  march  of  a  con- 
queror, or  the  sudden  devastations  of  a  flood. 

But  an  error  of  an  opposite  character,  and  quite  as  mischievous 
in  its  tendency,  is,  the  common  notion,  that  government  is  a  matter 
of  great  simplicity  ;  that  its  principles  are  so  clear,  that  they  are 
little  liable  to  mistake  ;  that  the  fabric  can  be  erected  by  persons  of 
ordinary  skill  ;  and  that,  when  once  erected  upon  correct  principles, 
it  will  stand  without  assistance, 

"  By  its  own  weight  made  steadfast  and  immovable." 

This  is  the  besetting  delusion  (I  had  almost  said  the  besetting  sin) 
in  all  popular  governments.  It  sometimes  takes  its  rise  in  that  en- 
thusiasm,, which  ingenuous  minds  are  apt  to  indulge  in  regard  to 
human  perfectibility.  But  it  is  more  generally  propagated  by 
demagogues,  as  the  easiest  method  of  winning  popular  favor,  by 
appeals,  which  flatter  popular  prejudices,  and  thus  enable  them 
better  to  accomplish  their  own  sinister  designs.  If  there  be  any 
truth,  which  a  large  survey  of  human  experience  justifies  us  in 
asserting,  it  is,  that,  in  proportion  as  a  government  is  free,  it  must 
be  complicated.  Simplicity  belongs  to  those  only,  where  one  will 
governs  all ;  where  one  mind  directs,  and  all  others  obey  ;  where  few 
arrangements  are  required,  because  no  checks  to  power  are  allowed  ; 
where  law  is  not  a  science,  but  a  mandate  to  be  followed,  and  not 
to  be  discussed ;  where  it  is  not  a  rule  for  permanent  action,  but  a 
capricious  and  arbitrary  dictate  of  the  hour. 

But  passing  from  these  general  considerations,  (upon  which  it  is, 
at  present,  unnecessary  to  enlarge,)  I  propose  to  bring  the  subject 
immediately  home  to  our  own  business  and  bosoms,  by  examining 
the  importance  and  utility  of  the  science  of  government  to  Ameri- 
cans, with  reference  to  their  own  political  institutions.  And  I  do 
not  hesitate  to  affirm,  not  only  that  a  knowledge  of  the  true  prin- 
ciples of  government  is  important  and  useful  to  Americans,  but  that 
it  is  absolutely  indispensable,  to  carry  on  the  government  of  their 
choice,  and  to  transmit  it  to  their  posterity. 

In  the  first  place,  what  are  the  great  objects  of  all  free  govern- 
ments ?  They  are,  the  protection  and  preservation  of  the  personal 
rights,  the  private  property,  and  the  public  liberties  of  the  whole 
people.  Without  accomplishing  these  ends,  the  government  may, 
indeed,  be  called  free,  but  it  is  a  mere  mockery,  and  a  vain,  fantastic 
shadow.  If  the  person  of  any  individual  is  not  secure  from  assaults 
and  injuries ;  if  his  reputation  is  not  preserved  from  gross  and  ma- 
licious calumny  ;  if  he  may  not  speak  his  own  opinions  with  a 


152  LITERARY    DISCOURSES. 

manly  frankness;  if  he  may  be  imprisoned  without  just  cause,  and 
deprived  of  all  freedom  in  his  choice  of  occupations  and  pursuits;  — 
it  will  be  idle  to  talk  of  his  liberty  to  breathe  the  air,  or  to  bathe 
in  the  public  stream,  or  to  give  utterance  to  articulate  language.  If 
the  earnings  of  his  industry  may  be  appropriated,  and  his  property 
may  be  taken  away,  at  the  mere  will  of  rulers,  or  the  clamors  of  a 
mob,  it  can  afford  little  consolation  to  him,  that  he  has  already 
derived  happiness  from  the  accumulation  of  wealth,  or  that  he  has 
the  present  pride  of  an  ample  inheritance;  that  his  farm  is  not  yet 
confiscated,  his  house  has  not  yet  ceased  to  be  his  castle,  and  his 
children  are  not  yet  reduced  to  beggary.  If  his  public  liberties,  as 
a  man  and  a  citizen,  his  right  to  vote,  his  right  to  hold  office,  his 
right  to  worship  God  according  to  the  dictates  of  his  own  con- 
science, his  equality  with  all  others,  who  are  his  fellow-citizens  ; 
if  these  are  at  the  mercy  of  the  neighbouring  demagogue,  or  the 
popular  idol  of  the  day;  —  of  what  consequence  is  it  to  him,  that  he 
is  permitted  to  taste  of  sweets,  which  may  be  wantonly  dashed  from 
his  lips  at  the  next  moment,  or  to  possess  privileges,  which  are  felt 
more  in  their  loss,  even,  than  in  their  possession  ?  Life,  liberty,  and 
property  stand  upon  equal  grounds  in  the  just  estimate  of  freemen ; 
and  one  becomes  almost  worthless  without  the  security  of  the  oth- 
ers. How,  then,  are  these  rights  to  be  established  and  preserved  ? 
The  answer  is,  by  constitutions  of  government,  wisely  framed  and 
vigilantly  enforced  ;  by  laws  and  institutions,  deliberately  examined 
and  steadily  administered  ;  by  tribunals  of  justice  above  fear,  and  be- 
yond reproach,  whose  duty  it  shall  be  to  protect  the  weak  against 
the  strong,  to  guard  the  unwary  against  the  cunning,  and  to  punish 
the  insolence  of  office,  and  the  spirit  of  encroachment  and  wanton 
injury.  It  needs  scarcely  be  said,  how  much  wisdom,  talents, 
discretion,  and  virtue  are  indispensable  for  such  great  purposes. 

In  the  next  place,  the  people  have  taken  upon  themselves,  in 
our  free  form  of  government,  the  responsibility  of  accomplishing  all 
these  ends  ;  the  protection  and  preservation  of  personal  rights,  of 
property,  and  public  liberty.  Is  it  quite  certain,  that  we  shall 
successfully  accomplish  such  a  vast  undertaking?  Is  any  consid- 
erate man  bold  enough  to  venture  such  an  assertion  ?  Is  not  our 
government  itself  a  new  experiment  in  the  history  of  the  world? 
Has  not  every  other  republic,  with  all  the  wisdom,  and  splendor, 
and  wealth,  and  power,  with  which  it  has  been  favored,  perished, 
and  perished  by  its  own  hands,  through  the  might  of  its  own 
factions  ?     These  are  inquiries,  which  may  not  be  suppressed  or 


LECTURE    ON    THE    SCIENCE    OF    GOVERNMENT.  153 

evaded.  They  must  be  met,  and  deliberately  weighed.  They  press 
upon  the  minds  of  thousands,  who  are  most  interested  in  our  des- 
tiny, as  patriots  and  statesmen.  They  are  not  disposed  of  by  a 
few  fine  flourishes  of  rhetoric,  or  by  a  blind  and  boasting  confidence. 
They  involve  the  hopes  and  the  happiness  of  our  whole  posterity  ; 
and  we  must  meditate  on  them,  if  we  would  save  either  ourselves 
or  them.  One  of  the  first  lessons  of  wisdom  is  to  understand  our 
dangers  ;  and,  when  we  understand  them,  we  may  then  be  prepared 
to  meet  the  duties  and  difficulties  of  our  position. 

In  the  next  place,  we  have  chosen  for  ourselves  the  most  com- 
plicated frame  of  republican  government,  which  was  ever  offered 
to  the  world.  We  have  endeavoured  to  reconcile  the  apparent 
anomaly  of  distinct  sovereignties,  each  independent  of  the  other  in 
its  own  operations,  and  yet  each  in  full  action  within  the  same 
territory.  The  national  government,  within  the  scope  of  its  dele- 
gated powers,  is,  beyond  all  doubt,  supreme  and  uncontrollable  ;  and 
the  state  governments  are  equally  so,  within  the  scope  of  their  ex- 
clusive powers.  But  there  is  a  vast  variety  of  cases,  in  which  the 
powers  of  each  are  concurrent  with  those  of  the  other ;  and  it  is 
almost  impossible  to  ascertain  with  precision,  where  the  lines  of 
separation  between  them  begin  and  end.  No  rulers  on  earth  are 
called  to  a  more  difficult  and  delicate  task  than  our  own,  in  at- 
tempting to  define  and  limit  them.  If  any  collision  shall  happen, 
it  can  scarcely  be  at  a  single  point  only.  It  will  touch,  or  it  will 
trench,  upon  jealousies,  interests,  prejudices,  and  political  arrange- 
ments, infinitely  ramified  throughout  the  whole  extent  of  the  Union. 
The  adjustments,  therefore,  to  be  made  from  time  to  time,  to  avoid 
such  collisions,  and  to  carry  on  the  general  system  of  movements, 
require  a  degree  of  forecast,  caution,  skill,  and  patient  investigation, 
which  nothing  but  long  habits  of  reflection,  and  the  most  mature 
experience,  can  supply. 

In  the  interpretation  of  constitutional  questions  alone,  a  vast  field 
is  open  for  discussion  and  argument.  The  text,  indeed,  is  singu- 
larly brief  and  expressive.  But  that  very  brevity  becomes  of  itself 
a  source  of  obscurity  ;  and  that  very  expressiveness,  while  it  gives 
prominence  to  the  leading  objects,  leaves  an  ample  space  of  de- 
batable ground,  upon  which  the  champions  of  all  opinions  may  con- 
tend, with  alternate  victory  and  defeat.  Nay,  the  very  habits  of 
free  inquiry,  to  which  all  our  institutions  conduct  us,  if  they  do  not 
urge  us,  at  least  incite  us,  to  a  perpetual  renewal  of  the  contest. 
So  that  many  minds  are  unwilling  to  admit  any  thing  to  be  settled ; 
20 


154  LITERARY    DISCOURSES. 

and  the  text  remains  with  them  a  doubtful  oracle,  speaking  with  a 
double  meaning,  and  open  to  glosses  of  the  most  contradictory 
character.  How  much  sobriety  of  judgment,  solid  learning,  his- 
torical research,  and  political  sagacity  are  required  for  such  critical 
inquiries!  Party  leaders  may,  indeed,  despatch  the  matter  in  a 
few  short  and  pointed  sentences,  in  popular  appeals  to  the  passions 
and  prejudices  of  the  day,  or  in  harangues,  in  which  eloquence  may 
exhaust  itself  in  studied  alarms,  or  in  bold  denunciations.  But 
statesmen  will  approach  it  with  a  reverent  regard.  They  will 
meditate  upon  consequences  with  a  slow  and  hesitating  assent. 
They  will  weigh  well  their  own  responsibility,  when  they  decide  for 
all  posterity.  They  will  feel,  that  a  wound  inflicted  upon  the 
constitution,  if  it  does  not  bring  on  an  immediate  gangrene,  may 
yet  introduce  a  lingering  disease,  which  will  weaken  its  vital  organs, 
and  ultimately  destroy  them. 

But  it  is  not  in  the  examination  and  solution  of  constitutional 
questions  alone,  that  great  abilities,  and  a  thorough  mastery  of  the 
principles  of  government,  are  required  of  American  statesmen. 
The  ordinary  course  of  legislation,  in  the  national  councils,  is  full 
of  intricate  and  perplexing  duties.  It  is  not  every  man,  who  can 
make  an  animated  address  at  a  popular  meeting,  or  run  through 
the  common  places  of  party  declamation  at  the  hustings,  with  a 
fluent  elocution  and  a  steady  presence,  who  is  qualified  for  a  seat 
in  the  national  legislature.  The  interests  of  four  and  twenty  states 
are  there  represented,  and  are  there  to  be  scrupulously  weighed 
and  protected. 

Look,  but  for  a  moment,  over  the  vast  extent  of  our  coun- 
try ;  the  varieties  of  its  climates,  productions,  and  pursuits ;  its 
local  peculiarities  and  institutions ;  its  untiring  enterprise,  and 
inexhaustible  industry.  Look  to  the  ever  changing  character  of 
agriculture;  the  sugar,  cotton,  and  rice  of  the  South;  the  wheat, 
corn,  and  tobacco  of  the  .Middle  States;  and  the  stubborn,  but 
thriftv  growth  of  the  North,  yielding  to  culture,  what  seems  almost 
denied  to  climate.  Look  to  the  busy  haunts  of  our  manufactures, 
rising  on  a  thousand  hills,  and  sheltered  in  a  thousand  valleys,  and 
fed  by  a  thousand  streams.  Every  where  they  are  instinct  with 
life,  and  noisy  or  noiseless  industry,  and  pouring  forth  their  products 
to  every  market  with  an  unceasing  (low,  which  gathers,  as  it  goes. 
Look  to  the  reaches  of  our  foreign  commerce  through  every  region 
of  the  globe.  It  floats  on  the  burning  breezes  of  Africa  ;  it  braves 
the  stormy  seas  of  the  Arctic  regions.     It  glides  with  a  bounding 


LECTURE    ON    THE    SCIENCE    OF    GOVERNMENT.  155 

speed  on  the  weary  coasts  and  broad  streams  of  Southern  America. 
It  doubles  the  Capes  of  the  Indies,  and  meets  the  trade-winds  and 
monsoons  in  the  very  regions  of  their  birth.    It  gathers  its  treasures 
from  the  deep  soundings  of  the  Banks  of  Newfoundland.    It  follows 
the  seal  in  his  secret   visits  to  the  lonely    islands  of  the  Southern 
Pacific.     It  startles  the  whale  on  his  majestic  march  through  every 
latitude,  from  the  hither  Atlantic  to   the   seas  of  Japan.     The  sun 
shines  not  on  the  region,   where   its   flag   has   not  saluted  the  first 
beams  of  the  morning.     It  sets  not,   where  its   last  lingering  rays 
have  not  played  on   the  caps  of  its  masts.     And  then,  again,  look 
to  the  reaches  of  our  internal  commerce  along  the  various  inlets, 
and  bays,  and  ports  of  the   seaboard,  through   the   vast  and  almost 
interminable  rivers  and  valleys  of  the  West ;  on  the  broad  and  rest- 
less lakes,   through  the   deep   prairies,  and  up  the  steeps  of  the 
Rocky  Mountains,  and  onward  to  the  far  Ocean,  which  washes  the 
darkened  shores  of  two  continents.     Look,  I  say,   to  these  exten- 
sive  yet  connected   interests,   and   who   but   must  admit,   that  to 
understand    their    intricate  relations  and   dependencies,   to  gather 
up  even  the  fragments  of  that   knowledge,  which   it  is  necessary 
to  possess,   in   order  (I   will  not  say  to  guide,  and  direct  them, 
but)  not  to  mar   and  destroy   them,  there  must  be   years  of  pa- 
tient, thorough,  and  laborious  research  into  the  true  principles,  and 
policy,  and  objects  of  government. 

But  it  is  not  to  rulers  and  statesmen  alone,  that  the  science  of 
government  is  important  and  useful.  It  is  equally  indispensable  for 
every  American  citizen,  to  enable  him  to  exercise  his  own  rights, 
to  protect  his  own  interests,  and  to  secure  the  public  liberties  and 
the  just  operations  of  public  authority.  A  republic,  by  the  very  con- 
stitution of  its  government,  requires,  on  the  part  of  the  people,  more 
vigilance  and  constant  exertion  than  all  others.  The  American 
republic,  above  all  others,  demands  from  every  citizen  unceasing 
vigilance  and  exertion  ;  since  we  have  deliberately  dispensed  with 
every  guard  against  danger  or  ruin,  except  the  intelligence  and 
virtue  of  the  people  themselves.  It  is  founded  on  the  basis,  that 
the  people  have  wisdom  enough  to  frame  their  own  system  of  gov- 
ernment, and  pi  blic  spirit  enough  to  preserve  it  ;  that  they  cannot 
be  cheated  out  of  their  liberties  ;  and  that  they  will  not  submit  to 
have  them  taken  from  them  by  force.  We  have  silently  assumed 
the  fundamental  truth,  that,  as  it  never  can  be  the  interest  of  the 
majority  of  the  people  to  prostrate  their  own  political  equality  and 
happiness,  so  they  never  can  be  seduced  by  flattery  or  corruption, 


156  LITERARY    DISCOURSES. 

by  the  intrigues  of  faction,  or  the   arts  of  ambition,  to  adopt  any 
measures,  which  shall  subvert   them.     If  this   confidence   in  our- 
selves be  justified,  (and  who  among  Americans  does  not  feel  a  just 
pride  in  endeavouring  to  maintain  it?)  let  us  never  forget,  that  it  can 
be  justified  only  by  a  watchfulness  and  zeal  proportionate  to  our 
confidence.     Let  us  never  forget,   that  we  must   prove  ourselves 
wiser,  and  better,  and    purer,  than  any  other  nation  ever  yet  has 
been,  if  we  are  to  count  upon  success.     Every  other  republic  has 
fallen  by  the  discords  and  treachery  of  its  own  citizens.    It  has  been 
said  by  one  of  our  departed  statesmen,  himself  a  devout  admirer  of 
popular  government,  that   power  is   perpetually  stealing  from  the 
many  to  the  few.     It  has  been  said  by  one  of  the  greatest  orators 
of  antiquity,  whose  life  was  devoted  to  the  republic  with  a  zealous 
but  unsuccessful  patriotism,  that  the   bad  will  always  attack,  with 
far  more  spirit,  than  the  good  will  defend,  sound  principles.     The 
republic,  said  he,   with   a  melancholy  eloquence,   the   republic  is 
assailed  with  far  more  force  and   contrivances,  than  it  is  defended, 
because  bold  and  profligate  men   are  impelled  by  a  nod,  and  move 
of  their  own   accord  against  it.     But  I  know  not  how  it  happens, 
the  good  are  always  more  tardy.     They  neglect   the  beginning  of 
things,  and  are  roused  only  in  the   last  necessity.     So  that  some- 
times, by  their  delay  and  tardiness,  while   they  wish  to  retain  ease, 
even  without  dignity,  they  lose  both.     Those,  who  are  willing  to 
be   the  defenders  of  the  republic,  if  they  are  of  the   lighter  sort, 
desert ;  if  they  are  of  the  more  timid  sort,  they  fly.     Those  alone 
remain,  and  stand  by  the  republic,  whom  no  power,  no  threats,  no 
malice  can  shake  in  their  resolution.*     Such  is  the  lesson  of  ancient 
wisdom,  admonishing  us,  as  from  the  grave  ;  and  it  was  pronounced, 
as  it  were,  at  the  very  funeral  of  Roman  liberty. 

Besides;  in  other  countries,  there  are  many  artificial  barriers  against 
sudden  changes  and  innovations,  which  retard,  if  they  do  not  wholly 
obstruct,  them.  There  are  ecclesiastical  and  civil  establishments, 
venerable  from  their  antiquity,  and  engrafted  into  the  very  habits, 
and  feelings,  and  prejudices  of  the  people.  There  are  hereditary 
honors  and  privileges,  the  claims  of  aristocracy,  and  the  influences 
of  wealth,  accumulated  and  perpetuated  in  a  few  families.  We 
have  none  of  these  to  embarrass,  or  overawe  us.  Our  statutes, 
regulating  the  descent  of  estates,  have  entirely  broken  down  all  the 
ordinary  means  of  undue  accumulation  ;  and  our  just  pride  is,  that 
the  humblest  and  highest  citizens  are  upon  a  footing  of  equality. 

*  Cicero,  Oratio  pro  Scxtio.   ch.    17. 


LECTURE    ON    THE    SCIENCE    OF    GOVERNMENT.  157 

Nothing  here  can  resist  the  will  of  the  people  ;  and  nothing,  cer- 
tainly, ought  to  resist  their  deliberate  will.  The  elements  of  change 
are,  therefore,  about  us  in  every  direction,  from  the  fundamental 
articles  of  our  constitutions  of  government,  down  to  the  by-laws  of 
the  humblest  municipality. 

Changes,  then,  may  be  wrought  by  public  opinion,  wherever  it 
shall  lead  us.  They  may  be  sudden,  or  they  may  be  slow  ;  they 
may  be  for  the  worse,  as  well  as  for  the  better ;  they  may  be  the 
solid  growth  of  a  sober  review  of  public  principles,  and  a  more 
enlightened  philosophy  ;  or  they  may  be  the  spurious  product  of  a 
hasty  and  ill  advised  excitement,  flying  from  evils,  which  it  knows 
and  feels,  to  those  far  greater,  which  it  sees  not,  and  may  never  be 
able  to  redress.  They  may  be  the  artful  delusions  of  selfish  men, 
taking  advantage  of  a  momentary  popularity,  or  the  deep  laid  plan 
of  designing  men,  to  overthrow  the  foundations  of  all  free  institutions. 
This  very  facility  of  introducing  changes  should  make  us  more, 
scrupulous  in  adopting  innovations  ;  since  they  often  bring  perma- 
nent evils  in  their  train,  and  compensate  us  only  by  accidental  and 
temporary  good.  What  is  safe,  is  not  always  expedient ;  what  is 
theoretically  true,  is  often  practically  false,  or  doubtful ;  what,  at  the 
first  glance,  seems  beneficial  and  plausible,  is,  upon  more  mature 
examination,  often  found  to  be  mischievous  or  inefficient  ;  what  con- 
stitutes the  true  policy  and  security  of  free  governments,  lies,  not 
unfrequently,  so  distant  from  immediate  observation  and  experience, 
that  it  is  rashly  rejected,  or  coldly  received.  Hence,  it  has  been 
remarked,  that  a  free  people  rarely  bestow  on  good  rulers  the 
powers  necessary  for  their  own  permanent  protection,  and  as  rarely 
withhold  from  bad  ones  those,  which  may  be  used  for  their  own 
destruction. 

Again,  independently  of  the  common  causes,  which  are  constantly 
at  work  in  all  governments,  founded  upon  the  common  passions  and 
infirmities  of  human  nature,  there  are  in  republics  some  peculiar 
causes  to  stimulate  political  discontents,  to  awaken  corrupt  ambition, 
and  to  generate  violent  parties.  Factions  are  the  natural,  nay, 
perhaps,  the  necessary  growth  of  all  free  governments  ;  and  they 
must  prevail  with  more  activity  and  influence,  just  in  proportion, 
as  they  enlist  in  their  ranks  the  interest  and  power  of  numbers. 
Where  all  the  citizens  are,  practically  speaking,  voters,  it  is  obvious, 
that  the  destiny  of  public  men  and  public  measures  must  essentially 
depend  on  the  contest  at  the  polls,  and  the  wisdom  of  the  choice, 
which  is  there  made.     We  need  not  be  told,  that  many  other  in- 


158  LITERARY    DISCOURSES. 

fluences  are  present  on  such  occasions,  besides  those,  which  arise  from 
talents,  merit,  and  public  services.  We  need  not  be  told,  how  many 
secret  springs  are  at  work,  to  obstruct  tbat  perfect  freedom  and 
independence  of  choice,  which  arc  so  essential  to  make  the  ballot- 
box,  the  just  index  of  public  opinion.  We  need  not  be  told,  how 
often  the  popular  delusions  of  the  day  are  seized  upon,  to  deprive 
the  best  patriots  of  their  just  reward,  and  to  secure  the  triumph  of 
the  selfish,  the  cunning,  and  the  timeserving.  And  yet,  unless 
the  people  do  at  all  times  possess  virtue,  and  firmness,  and  in- 
telligence enough,  to  reject  such  mischievous  influences  ;  unless 
they  are  well  instructed  in  public  affairs,  and  resolutely  maintain 
the  principles  of  the  constitution,  it  is  obvious,  that  the  government 
itself  must  soon  degenerate  into  an  oligarchy;  and  the  dominant 
faction  will  rule  with  an  unbounded  and  desolating  energy.  The 
external  forms  of  machinery  of  the  republic  may  continue  to 
exist,  like  the  solemn  pageantry  of  the  Roman  Senate,  in  the  times 
of  the  emperors;  but  the  informing  spirit  will  have  departed,  and 
leave  behind  it  only  the  faded  and  melancholy  memorials  of  irre- 
trievable decay. 

I  have  but  glanced  at  these  considerations,  each  of  which  might 
well  furnish  a  topic  for  a  full  discourse.  If  the  remarks  already 
suggested  are  in  any  measure  well  founded,  they  establish  the  great 
truth,  that,  as,  in  the  American  republic,  the  people  themselves  are 
not  only  the  source  of  all  power,  but  the  immediate  organs  and 
instruments  of  its  due  exercise,  at  all  times,  it  is  of  everlasting 
importance  to  them  to  study  the  principles  of  government;  and 
thoroughly  to  comprehend  men,  as  well  as  measures,  tendencies,  as 
well  as  acts,  and  corrupting  influences,  as  well  as  open  usurpations. 
To  whom  can  we  justly  look  for  the  preservation  of  our  public 
liberties  and  social  rights ;  for  the  encouragement  of  piety,  religion, 
and  learning;  for  the  impartial  administration  of  justice  and  equity; 
for  wise  and  wholesome  laws,  and  a  scrupulous  public  faith  ;  but  to 
a  people,  who  shall  lay  a  solid  foundation  for  all  these  things  in 
their  early  education  ;  who  shall  strengthen  them  by  an  habitual 
reverence  and  approbation  ;  and  who  shall  jealously  watch  every 
encroachment,  which  may  weaken  the  guards,  or  sap  the  supports, 
on  which  they  rest? 

And  this  leads  me  to  the  next  topic,  upon  which  I  propose  to 
address  you  ;  and  that  is,  the  practicability  of  teaching  the  science 
of  government,  as  a  branch  of  popular  education.  If  it  be  not 
capable  of  being  so  taught,   then,   indeed,   well  may  patriots  and 


LECTURE    ON    THE    SCIENCE    OF    GOVERNMENT.  159 

philanthropists,  as  well  as  philosophers,  sink  into  profound  despair 
in  regard  to  the  duration  of  our  republic.  But  it  appears  to  me, 
that  we  are  by  no  means  justified  in  arriving  at  such  a  desponding 
conclusion.  On  the  contrary,  we  may  well  indulge  a  firm  and 
lively  hope,  that,  by  making  the  science  of  government  an  indis- 
pensable branch  of  popular  education,  we  may  gradually  prepare 
the  way  for  such  a  mastery  of  its  principles,  by  the  people  at  large, 
as  shall  confound  the  sophist,  repress  the  corrupt,  disarm  the  cun- 
ning, animate  the  patriotic,  and  sustain  the  moral  and  relio-ious. 

It  is  true,  that  a  thorough  mastery  of  the  science  of  government, 
in  all  its  various  operations,  requires  a  whole  life  of  laborious  dili- 
gence. But  it  is  equally  true,  that  many  of  its  general  principles 
admit  of  a  simple  enunciation,  and  may  be  brought  within  the 
comprehension  of  the  most  common  minds.  In  this  respect,  it  does 
not  materially  differ  from  any  of  the  abstract  physical  sciences. 
Few  of  the  latter  are,  in  their  full  extent,  within  the  reach  of  any, 
but  the  highest  class  of  minds  ;  but  many  of  the  elements  are, 
nevertheless,  within  the  scope  of  common  education,  and  are  attain- 
able by  ordinary  diligence.  It  is  not  necessary,  that  every  citizen 
should  be  a  profound  statesman.  But  it  may,  nevertheless,  be  of 
vast  consequence,  that  he  should  be  an  enlightened,  as  well  as  an 
honest  voter,  and  a  disciplined  thinker,  if  not  an  eloquent  speaker. 
He  may  learn  enough  to  guard  himself  against  the  insidious  wiles 
of  the  demagogue,  and  the  artful  appeals  of  the  courtier,  and  the 
visionary  speculations  of  the  enthusiast ;  although  he  may  not  be 
able  to  solve  many  of  the  transcendental  problems  in  political 
philosophy. 

In  the  first  place,  as  to  the  constitution  of  the  United  States  ; 
(and  similar  considerations  will  apply,  with  at  least  equal  force,  to  all 
the  state  constitutions ;)  the  text  is  contained  in  a  few  pages,  and 
speaks  a  language,  which  is  generally  clear  and  intelligible  to  any 
youth  of  the  higher  classes  at  our  common  schools,  before  the  close 
of  the  usual  academical  studies.  Nay,  it  may  be  stated  with 
confidence,  that  any  boy,  of  ordinary  capacity,  may  be  made  fully 
to  understand  it,  between  his  fourteenth  and  sixteenth  year,  if  he 
has  an  instructer  of  reasonable  ability  and  qualifications.  He  may 
become  possessed  of  the  actual  organization  and  powers  of  the 
government,  under  which  he  lives,  to  which  he  is  responsible,  and 
which  he  is  enjoined,  by  every  duty  of  patriotism  and  interest,  to 
transmit  unimpaired  to  future  generations.  He  may  practically 
learn  the  leading  divisions  of  the  great  powers  of  all  governments, 


160  LITERARY    DISCOURSES. 

into  legislative,  executive,  and  judicial.  He  may  ascertain,  in  some 
general  wav,  the  definite  boundaries  and  appropriate  functions  of 
each.  He  may  understand  yet  more;  that  there  are  checks  and 
balances  every  where  interposed,  to  limit  power,  and  prevent  op- 
pression, and  ensure  deliberation,  and  moderate  action.  He  may 
perceive,  that  the  House  of  Representatives  cannot  make  laws, 
without  the  cooperation  of  the  Senate  ;  that  the  President  can- 
not make  appointments,  without  the  consent  of  the  Senate  ;  and 
yet,  that  the  President  can,  by  his  qualified  veto,  arrest  the  legisla- 
tive action  of  both  houses.  He  may  perceive,  that  the  Judiciary,  in 
many  parts  of  its  organization,  acts  through,  and  by,  and  under  the 
will  of  the  Legislature  and  Executive;  and  yet  that  it  stands,  in 
many  respects,  independent  of  each ;  nay,  that  it  has  power  to  resist 
the  combined  operations  of  both  ;  and  to  protect  the  citizens  from 
their  unconstitutional  proceedings,  whether  accidental  or  meditated. 
He  may  perceive,  that  the  state  governments  are  indispensable 
portions  of  the  machinery  of  national  government ;  that  they  in 
some  cases  control  it ;  and  in  others,  again,  are  controlled  by  it : 
that  the  same  supreme  law,  which  promulgates  prohibitions  upon 
certain  acts  to  be  done  by  the  States,  at  the  same  lime  promulgates 
like  prohibitions  upon  the  acts  of  the  United  States.  He  may  per- 
ceive, that  there  are  certain  leading  principles  laid  down,  as  the 
fundamental  rules  of  government ;  and  that  they  constitute  a  solemn 
bill  of  rights,  which  must  be  obeyed,  and  cannot  be  gainsaid.  He 
may  perceive,  that  the  trial  by  jury  is  preserved,  as  a  matter  of 
right,  in  all  cases  of  crimes,  and  generally,  also,  in  civil  cases  ;  that 
the  liberty  of  speech  and  of  the  press  are  constitutionally  vindi- 
cated ;  that  no  national  religion  can  be  imposed  upon  the  commu- 
nity ;  that  private  property  cannot  be  taken  away  without  adequate 
compensation;  and  that  the  inviolability  of  public  and  private  con- 
tracts is  strenuously  enforced. 

Having  arrived  at  this  clear  and  definite  view  of  the  distribution 
of  the  powers  of  government,  with  the  appropriate  restrictions 
belonging  to  them,  he  can  scarcely  fail  to  ask.  What  are  the  reasons, 
which  induced  the  framers  of  the  constitution  to  adopt  them?  It 
is  scarcely  possible,  that  he  should  be  so  dull,  as  not  to  have  some 
desire  to  gratify,  or  so  indifferent,  as  not  to  have  some  curiosity  to 
indulge,  such  inquiries.  When  he  is  told,  on  every  side,  that 
this  is  the  form  of  government  best  calculated  to  secure  his  personal 
happiness,  and  animate  his  love  of  liberty  ;  it  would  be  incredible, 
that  he  should  feel  no  interest  in  ascertaining,  why  and  wherefore 


LECTURE    ON    THE    SCIENCE    OF    GOVERNMENT.  161 

it  is  so.  Why,  for  instance,  legislation  may  not  as  well  be  confided 
to  one  body,  as  to  two  distinct  bodies?  Why  unity  in  the  Execu- 
tive is  preferable  to  plurality  of  numbers  ?  Why  the  Judiciary 
should  be  separated  from  the  other  branches  ?  Why,  in  short, 
simplicity  in  government  is  destructive  of  public  liberty  ;  and  a 
complex  machinery  of  checks  and  balances  is  indispensable  to  pre- 
serve it  ?  Inquiries  of  this  sort,  if  they  do  not  spontaneously  rise 
up  in  his  own  mind,  cannot  be  presented  to  it  by  his  instructer, 
without  opening  new  and  various  sources  of  reflection.  He  will 
thus  be  conducted  to  the  threshold  of  that  profound  science,  which 
begins  and  ends  with  the  proper  study  of  man  in  all  bis  social 
relations. 

And  here,  again,  it  may  be  confidently  affirmed,  that  there  is 
not  the  slightest  difficulty  in  unfolding  to  our  youth  the  true  nature 
and  bearing  of  all  these  arrangements,  and  the  reasons,  on  which 
they  are  founded.  Although  they  are  the  result  of  human  wisdom, 
acting  upon  the  most  comprehensive  human  experience,  and  have 
tasked  the  greatest  minds  to  discover  and  apply  them  ;  they  are, 
nevertheless,  capable  of  as  exact  a  demonstration,  as  any  other 
problems  of  moral  philosophy,  applied  to  the  business  of  human 
life.  It  required  the  genius  of  Newton  to  discover  the  profound 
mystery  of  the  universal  law  of  gravitation  ;  but  every  schoolboy 
can  now  reason  upon  it,  when  he  bathes  in  the  refreshing  coolness 
of  the  summer  stream,  or  gazes  with  unmixed  delight  on  the  beau- 
tiful starlight  of  the  wintry  heavens.  So  it  is  with  political  philoso- 
phy. Its  great  truths  can  be  clearly  taught,  and  made  familiar  to 
the  juvenile  mind,  at  the  same  time,  that  they  may  well  employ 
the  most  exalted  powers  of  the  human  understanding.  What  more 
difficulty,  for  instance,  is  there  in  a  scholar's  comprehending  the 
value  of  checks,  and  balances,  and  divisions  of  power  in  a  govern- 
ment, than  in  comprehending  the  value  of  good  order  and  discipline 
in  a  school,  or  the  propriety  of  trustees'  laying  down  rules  to  regu- 
late and  control  the  head  master,  and  he,  other  rules  to  guide  and 
direct  his  ushers?  The  principles  may  not,  indeed,  always  be 
obvious  to  the  narrow  circle  of  his  thoughts ;  but  they  can  be 
pointed  out.  They  may  lie  too  remote  for  his  immediate  observa- 
tion ;  but  he  may  learn  the  paths,  by  which  they  may  be  explored. 
They  may  not,  as  yet,  be  within  his  grasp ;  but  he  can  be  taught, 
how  they  may  be  reached  by  skill  and  d, licence.  He  may  not,  as 
yet,  see  their  full  extent  and  operation  ;  but  his  vision  will  gradually 
expand,  until  he  can  seize  on  the  most  distant  objects,  and  bring 
21 


16-2  LITERARY    DISCOURSES. 

them  as  it  were,  under  the  eye  of  his  mind  with  a  close  and  cloud- 
less certainty.  Every  element  of  knowledge,  which  he  thus  grad- 
ually acquires,  will  soon  become  incorporated  into  his  former  stock, 
until,  at  last,  he  has  accumulated  a  capital,  upon  which  he  may 
safely  set  up  for  himself;  and,  by  widening,  and  deepening,  and 
strengthening  the  foundations,  he  may,  at  length,  acquire  a  character 
for  political  wisdom  and  ability,  which  shall  make  him  at  once  an 
ornament  and  a  blessing  to  his  country,  even  though  he  may  never 
pass  beyond  the  precincts  of  his  native  village.  He  may  there  be 
able  1o  quiet  the  discontented  murmurs  of  a  misguided  populace. 
He  may  there  repress  the  ordinate  love  of  innovation  of  the  young, 
the  ignorant,  and  the  restless.  He  may  there  stand  the  uncon- 
querable friend  of  liberty ;  recommending  it  by  his  virtues,  and 
sustaining  it  by  his  councils.  He  may  there  withstand  the  village 
tyrant,  too  often  disguised  under  the  specious  character  of  the 
village  demagogue.  And  he  may  there  close  his  life  with  the 
conscious  satisfaction,  that,  as  a  village  patriot,  he  has  thus  filled  up 
the  measure  of  his  duties ;  and  has  earned  a  far  more  enviable 
title  to  true  glory,  than  the  conqueror,  who  has  left  the  dark  im- 
pressions of  his  desolations  in  the  ruined  hopes  and  fortunes  of 
millions. 

If,  on  the  other  hand,  a  higher  destiny  awaits  him;  if  he  is  called 
to  take  a  part  in  the  public  councils  of  the  state,  or  nation  ;  what 
immense  advantages  must  such  preparatory  studies  and  principles 
give  him  over  those,  who  rise  into  public  life  by  the  accidents  of 
the  day,  and  rush  into  the  halls  of  legislation  with  a  blind  and 
daring  confidence,  equalled  only  by  their  gross  ignorance,  and  their 
rash  ardor  for  reform  !  For  weal,  or  for  wo,  our  destiny  must  be 
committed  to  the  one  or  the  other  of  these  classes  of  rulers,  as 
public  opinion  shall  decide.  Who  would  willingly  commit  himself 
to  the  skill  of  a  pilot,  who  had  never  sounded  the  depths,  or  marked 
the  quicksands  of  the  coast  ?  Who  would  venture  to  embark  his 
all  on  board  a  ship,  on  a  short  voyage,  (far  less,  on  the  voyage 
of  life,)  when  the  crew  have  not  learned  how  to  trim  the  sails,  and 
there  is  neither  chart  nor  compass  on  board  to  guide  the  navigation  ? 

I  am  not  aware,  that  there  are  any  solid  objections,  which  can 
be  urged  against  introducing  the  science  of  government  into  our 
common  schools,  as  a  branch  of  popular  education.  If  it  should 
be  said,  that  it  is  too  deep  and  difficult  for  the  studies  of  youth, 
that  objection  assumes  the  very  matter  in  controversy ;  and,  if  the 
observations  already  made  are  well  founded,  it  is  wholly  indefensi- 


LECTURE    ON    THE    SCIENCE    OK    GOVERNMENT.  163 

ble.  If  it  should  be  said,  that  it  will  have  a  tendency  to  introduce 
party  creeds  and  party  dogmas  into  our  schools,  the  true  answer  is, 
that  the  principles  of  government  should  be  there  taught,  and  not 
the  creeds  or  dogmas  of  any  party.  The  principles  of  the  consti- 
tution, under  which  we  live  ;  the  principles,  upon  which  republics 
generally  are  founded,  by  which  they  are  sustained,  and  through 
which  they  must  be  saved ;  the  principles  of  public  policy,  by 
which  national  prosperity  is  secured,  and  national  ruin  averted ; 
these,  certainly,  are  not  party  creeds,  or  party  dogmas ;  but  are  fit 
to  be  taught  at  all  times  and  on  all  occasions,  if  any  thing,  which 
belongs  to  human  life  and  our  own  condition,  is  fit  to  be  taught. 
If  we  wait,  until  we  can  guard  ourselves  against  every  possible 
chance  of  abuse,  before  we  introduce  any  system  of  instruction, 
we  shall  wait  until  the  current  of  time  has  flowed  into  the  ocean 
of  eternity.  There  is  nothing,  which  ever  has  been,  or  ever  can 
be  taught,  without  some  chance  of  abuse,  nay,  without  some 
absolute  abuse.  Even  religion  itself,  our  truest  and  our  only  lasting 
hope  and  consolation,  has  not  escaped  the  common  infirmity  of  our 
nature.  If  it  never  had  been  taught,  until  it  could  be  taught  with 
the  purity,  simplicity,  and  energy  of  the  apostolic  age,  we  our- 
selves, instead  of  being  blest  with  the  bright  and  balmy  influences 
of  Christianity,  should  now  have  been  groping  our  way  in  the 
darkness  of  heathenism,  or  left  to  perish  in  the  cold  and  cheerless 
labyrinths  of  skepticism. 

If  it  be  said,  that  there  is  not  time,  or  means,  suitable  to  learn 
these  principles  in  our  common  schools,  the  true  answer  is,  that,  if 
the  fact  be  so,  (which  is  not  admitted,)  more  time  should  be  given, 
and  more  ample  means  be  supplied,  for  the  purpose.  What  is  the 
business  of  education,  but  to  fit  men  to  accomplish  their  duties  and 
their  destiny  ?  And  who  is  there  among  Americans,  that  is  not 
called  to  the  constant  performance  of  political  duties,  and  the  exer- 
cise of  political  privileges  ?  He  may  perform,  or  use  them,  well 
or  ill.  But  the  results  of  the  use  and  abuse  are,  and  ever  will  be, 
mixed  up  with  his  own  intimate  interests.  The  perils,  he  may 
choose  that  others  shall  encounter,  he  must  share  in  common  with 
them.  He  is  embarked  in  the  same  ship  of  state,  and  the  ship- 
wreck, which  shall  bury  the  hopes  of  others,  will  not  spare  his  own. 
What  blessings  in  human  life  can  fairly  be  put  in  competition  with 
those  derived  from  good  government  and  free  institutions?  What 
condition  can  be  more  deplorable  than  that,  where  labor  has  no 
reward,   property  no  security,  and  domestic  life   no  tranquillity  ? 


164  LITERARY    DISCOURSES. 

where  the  slave  is  compelled  to  kiss  the  chain,  which  binds  him 
to  wretchedness,  and  smile  upon  his  oppressor,  while  his  heart  is 
writhing  in  agony  ?  Let  not  Americans  forget,  that  Greece,  im- 
mortal Greece,  has  been  free  ;  and  yet,  that  thousands  of  years 
have  already  rolled  over  her  servitude  ;  that  Italy,  beautiful  Italy, 
has  been  free  ;  but  where  is  now  her  republican  grandeur  ?  The 
Apennines  still  lift  up  their  bold  and  rugged  peaks ;  the  sun  still 
looks  down  upon  her  plains  with  a  warm  and  cloudless  splen- 
dor;—  but  the  spirit  of  liberty  is  not  there  ;  and  Rome  has  become, 
as  it  were,  the  vast  sepulchre  of  her  own  perished  glory. 

But,  independent  of  the  grave  considerations,  already  urged,  in 
favor  of  the  introduction  of  political  studies  into  our  system  of 
popular  education,  there  are  other  collateral  advantages,  which 
should  not  be  wholly  passed  by. 

In  the  first  place,  there  are  no  studies  better  fitted  to  discipline 
the  mind,  or  to  accustom  it  to  severe  and  close  investigation.  They 
combine,  in  a  very  high  degree,  the  speculations  of  philosophy  with 
the  varied  events  of  history,  and  increase  the  separate  interest  of 
each.  They  have  a  tendency  to  enlarge  and  liberalize  the  mind, 
by  familiarizing  it  with  comprehensive  views  of  men  and  things. 
They  are  capable  of  an  indefinite  expansion  and  variety  ;  such  as 
may  employ  the  whole  leisure  of  the  most  retired  scholar,  or  suit 
the  short  and  hasty  intervals  of  the  man  of  business.  They  gather 
up  new  materials  in  the  daily  intercourse  of  society  ;  and,  at  the 
same  time,  they  enable  us  to  expound  its  apparent  anomalies,  and 
classfy  its  vared  results. 

In  the  next  place,  they  have  a  powerful  tendency  to  counteract 
the  rash  and  hasty  judgments,  which  youth  and  inexperience  natu- 
rally produce  in  ardent  and  inquisitive  minds.  Nothing  is  so  fasci- 
nating, and  so  delusive,  as  the  simplicity  of  theory,  in  the  earlier 
stages  of  life.  It  not  only  flatters  that  pride  of  opinion,  which 
results  from  a  supposed  mastery  of  important  truths;  but  it  gratifies 
that  fresh  and  vigorous  confidence,  which  hopeth  all  things,  and 
believeth  all  things.  The  severe  lessons  of  experience  do,  indeed, 
generally,  correct,  or  demolish  these  visionary  notions.  But  they 
often  come  so  slow,  that  irreparable  mistakes  have  been  already 
committed  ;  and  the  party  is  left  to  mourn  over  the  blight  of  his 
own  prospects,  or  the  impending  dangers  to  his  country.  Nothing 
can  have  a  more  salutary  effect  in  repressing  this  undue  pride  and 
confidence  than  the  study  of  the  science  of  government.  The 
youth  is  there  taught,  how  little  reliance  can  be  placed  upon  mere 


LECTURE    ON    THE    SCIENCE    OF    GOVERNMENT.  165 

abstract  speculations ;  how  often  that,  which  is  theoretically  true, 
becomes  practically  mischievous  ;  how  complicated  is  the  machinery, 
necessary  to  carry  on  the  operations  of  a  good  government  ;  how 
many  nice  adjustments  are  required,  to  give  full  play  and  activity 
to  the  system  ;  how  slow  every  change  must  be,  to  be  safe,  as  well 
as  improving  ;  and,  above  all,  how  often  the  wisest  statesmen,  the 
truest  patriots,  and  the  most  profound  reasoners,  find  defects,  where 
they  had  least  suspected  them  ;  and  their  labors,  begun  with  energy 
and  confidence,  end  in  disappointment  and  mortification.  Nay, 
systems  of  government,  which  have  been  apparently  reared  with 
consummate  skill  and  solidity,  have  often  been  found  buried  in  ruins, 
before  the  capstone  has  been  placed  upon  them  ;  and,  while  the 
architect  has  been  still  gazing  on  his  own  work,  he  has  become  the 
first  victim  of  its  ponderous  magnificence. 

Considerations  of  this  sort  cannot  wholly  escape  an  ingenuous 
youth,  upon  the  most  cursory  examination  of  government,  as  it  is 
read  by  the  lights  of  history.  They  will  naturally  inspire  caution, 
if  they  do  not  awaken  distrust ;  and  when,  at  every  step  of  his 
advancement  in  political  studies,  he  finds  himself  compelled  to 
surrender  some  imagined  truth,  to  discredit  some  popular  dogma, 
and  to  doubt  some  plausible  theory,  he  cannot  but  profit  by  the 
instructions,  which  they  hold  out,  and  the  admonitions,  which  they 
silently  inculcate.  A  nation,  whose  citizens  are  habitually  attentive 
to  the  principles  and  workings  of  government,  may  sometimes  be 
betrayed  ;  but  it  can  scarcely  bo  ruined.  At  least,  it  cannot  be 
enslaved,  until  it  has  sunk  so  low  in  corruption,  that  it  will  hail  the 
presence  of  any  tyrant,  to  escape  from  the  terrible  scourges  of 
anarchy. 

But  it  may  be  asked,  and  this  is  the  last  topic,  on  which  I  pro- 
pose to  address  you,  In  what  mode  is  the  science  of  government  to 
be  taught  in  our  common  schools  ?  The  answer  may  be  given  in 
a  few  words.  It  is  by  the  introduction  and  constant  use  of  suitable 
elementary  works,  which  unfold  the  principles  of  government,  and 
illustrate  their applcation,  and  in  an  especial  manner,  with  reference 
to  the  forms  of  the  American  constitutions.  Such  works  should 
not  only  be  read,  but  be  studied  as  classbooks.  The  instructer,  if 
he  possesses  common  skill  and  ingenuity,  may  easily  make  them, 
not  a  dry  task,  but  an  interesting  exercise.  By  bringing  constantly 
before  the  school,  in  the  course  of  reading,  and  recitation,  and 
occasional  explanations,  the  leading  principles  of  government,  he 
will  gradually  make  the  pupils  familiar  with  their  bearing  and  value. 


166  LITERARY    DISCOURSES. 

They  may  not  at  once  arrive  at  the  various  truths,  which  are 
designed  to  be  taught  :  but  they  will  silently  master  them.  And 
by  the  time  they  have  passed  through  the  usual  preparatory  studies 
of  the  school,  they  will  have  acquired  a  stock  of  materials  for  future 
use,  of  inestimable  value  —  a  stock,  which  will  furnish  perpetual 
sources  for  meditation,  and  enable  them  to  lay  a  broad  foundation 
for  the  due  discharge  of  the  duties  of  private  citizens,  and  the  more 
arduous  employments  of  public  life. 

Lord  Brougham,  one  of  the  most  powerful  advocates  of  popular 
education  in  our  day,  has  made  the  following  remarks,  which  can- 
not be  more  fitly  addressed  to  the  consideration  of  any  other  body 
than  that,  which  I  have  now  the  honor  to  address.  "  A  sound 
system  of  government,"  says  he,  "  requires  the  people  to  read,  and 
inform  themselves  upon  political  subjects ;  else  they  are  the  prey  of 
every  quack,  every  impostor,  and  every  agitator,  who  may  practise 
his  trade  in  the  country.  If  they  do  not  read  ;  if  they  do  not  learn  ; 
if  they  do  not  digest,  by  discussion  and  reflection,  what  they  have 
read  and  learned ;  if  they  do  not  qualify  themselves  to  form  opin- 
ions for  themselves,  other  men  will  form  opinions  for  them ;  not 
according  to  the  truth  and  the  interests  of  the  people,  but  accord- 
ing to  their  own  individual  and  selfish  interest,  which  may,  and 
most  probably  will,  be  contrary  to  that  of  the  people  at  large.  The 
best  security  for  a  government,  like  ours,  (a  free  government,)  and 
generally,  for  the  public  peace  and  public  morals,  is,  that  the 
whole  community  should  be  well  informed  upon  its  political,  as 
well  as  its  other  interests.  And  it  can  be  well  informed  only  by 
having  access  to  wholesome,  sound,  and  impartial  publications." 

I  shall  conclude  this  discourse  with  a  single  sentence,  borrowed 
from  the  great  work  of  Cicero  on  the  Republic,  the  most  mature, 
and  not  least  important,  of  his  splendid  labors  —  a  sentence,  which 
should  always  be  present  to  the  mind  of  every  American  citizen, 
as  a  guide  and  incentive  to  duty.  "  Our  country,"  said  that  great 
man,  "  has  not  given  us  birth,  or  educated  us  under  her  law,  as 
if  she  expected  no  succour  from  us;  or,  that,  seeking  to  administer 
to  our  convenience  only,  she  might  afford  a  safe  retreat  for  the 
indulgence  of  our  ease,  or  a  peaceful  asylum  for  our  indolence  ; 
but  that  she  might  hold  in  pledge  the  various  and  most  ex- 
alted powers  of  our  mind,  our  genius,  and  our  judgment,  for  her 
own  benefit  ;  and  that  she  might  leave  for  our  private  use  such  por- 
tions only,  as  might  be  spared  for  that  purpose." 

*  Cicero,  Dc  Republic^,  lib.  1.  cap.    I. 


LINES, 


WRITTEN   ON    THE  DEATH   OF  A  DAUGHTER,   IN   MAY,   1831. 


Farewell,  my  darling  child,  a  sad  farewell ! 
Thou  art  gone  from  earth,  in  heavenly  scenes  to  dwell  ; 
For  sure,  if  ever  being,  formed  from  dust, 
Might  hope  for  bliss,  thine  is  that  holy  trust. 
Spotless  and  pure,  from  God  thy  spirit  came  ; 
Spotless  it  has  returned,  a  brighter  flame. 
Thy  last,  soft  prayer  was  heard  —  No  more  to  roam ; 
Thou  art,  ('twas  all  thy  wish,)  thou  art  gone  home.* 
Ours  are  the  loss,  and  agonizing  grief, 
The  slow,  dead  hours,  the  sighs  without  relief, 
The  lingering  nights,  the  thoughts  of  pleasure  past, 
Memory,  that  wounds,  and  darkens,  to  the  last. 
How  desolate  the  space,  how  deep  the  line, 
That  part  our  hopes,  our  fates,  our  paths,  from  thine ! 
We  tread  with  faltering  steps  the  shadowy  shore  ; 
Thou  art  at  rest,  where  storms  can  vex  no  more. 
When  shall  we  meet  again,  and  kiss  away 
The  tears  of  joy  in  one  eternal  day? 

Most  lovely  thou !  in  beauty's  rarest  truth ! 
A  cherub's  face  ;  the  breathing  blush  of  youth  ; 
A  smile  more  sweet  than  seemed  to  mortal  given  ; 
An  eye  that  spoke,  and  beamed  the  light  of  heaven  ; 
A  temper,  like  the  balmy  summer  sky, 

That  soothes,  and  warms,  and  cheers,  when  life  beats  high ; 
A  bounding  spirit,  which,  in  sportive  chase, 
Gave,  as  it  moved,  a  fresh  and  varying  grace  ; 
A  voice,  whose  music  warbled  notes  of  mirth, 
Its  tones  unearthly,  or  scarce  formed  for  earth  ; 
A  mind,  which  kindled  with  each  passing  thought, 
And  gathered  treasures,  when  they  least  were  sought  ;  — 

*  The  last  words,  uttered  but  i  few  moments  before  her  death,  were,  "  I  want 
to  go  home." 


168  I, INKS, 

These  were  thy  bright  attractions  ;  these  had  power 

To  spread  a  nameless  charm  o'er  every  hour. 

But  that,  which,  more  than  all,  could  bliss  impart, 

Was  thy  warm  love,  thy  tender,  buoyant  heart, 

Th\  ceaseless  flow  of  feeling,  like  the  rill, 

That  fills  its  sunny  hanks,  ami  deepens  .-till. 

Thj  chief  delighl  to  ti\  thy  parents*  gaze, 

Win  their  fond  kiss,  or  gain  their  modest  praise. 

When  sickness  came,  though  short,  and  hurried  o'er, 
It  made  thee  more  an  angel  than  before. 
How  patient,  tender,  gentle,  though  disease 
Preyed  on  thy  life!  —  how  anxious  still  to  please! 
How  oft  around  thy  mother's  neck  entwined 
Thy  arms  were  folded,  as  to  Heaven  resigned! 
How  oft  thy  kisses  on  her  pallid  cheek 
Spoke  all  thy  love,  as  language  ne'er  could  speak! 
E'en  the  last  whisper  of  thy  parting  breath 
Asked,  and  received,  a  mother's  kiss,  in  death. 

But  oh!  how  vain,  by  art,  or  words,  to  tell, 
What  ne'er  was  told,  —  affection's  magic  spell! 
More  vain  to  tell  that  sorrow  of  the  soul, 
That  works  in  secret,  works  beyond  control, 
When  death  strikes  down,  with  sudden  crush  and  power, 
Parental  hope,  and  blasts  its  opening  (lower. 
Most  vain  to  tell,  how  deep  that  long  despair, 
Which  time  ne'er  heals,  which  time  can  scarce  impair. 

Yet  still  I  love  to  linger  on  the  strain  — 
'T is  grief's  sad  privilege.     When  we  complain, 

Our  hearts  are  eased  of  burdens  hard  to  bear  ; 
We  mourn  our  loss,  and  feel  a  comfort  there. 

My  child,  my  darling  child,  how  oft  with  thee 
Have  1  passed  hours  of  blameless  ecstasy! 
How  oft  have  wandered,  oft  have  paused  to  hear 
Thy  playful  thoughts  fall  sweetly  on  my  ear! 
How  oft  have  caught  a  hint  beyond  thy  age, 
Kit  to  instruct  the  wise,  or  charm  the  sage! 
How  oft,  with  pure  delight,  have  turned  to  see 
Thy  beauty  felt  by  all,  except  by  thee  ; 
Thy  modest  kindness,  and  thy  searching  glance; 
Thy  eager  movements,  and  thy  graceful  dance  ; 
And,  while  I  gazed  with  all  a  father's  pride, 
Concealed  a  joy,  worth  all  on  earth  beside! 


ON  THE  DEATH  OF  A  DAUGHTER.  169 

How  changed  the  scene !  In  every  favorite  walk 
I  miss  thy  Hying  steps,  thy  artless  talk  ; 
Where'er  I  turn,  I  feel  thee  ever  near  ; 
Some  frail  memorial  conies,  some  image  dear. 
Each  spot  still  breathes  of  thee  —  each  garden  flower 
Tells  of  the  past,  in  sunshine,  or  in  shown  ; 
And,  here,  the  chair,  and,  there,  the  sofa  stands, 
Pressed  by  thy  form,  or  polished  by  thy  hands. 
My  home,  how  full  of  thee!  —  But  where  art  thou? 
Gone,  like  the  sunbeam  from  the  mountain's  brow  ; 
But,  unlike  that,  once  passed  the  fated  bourn, 
Bright  beam  of  heaven,  thou  never  shalt  return. 
Yet,  yet,  it  soothes  my  heart  on  thee  to  dwell  ; 
Louisa,  darling  child,  farewell,  farewell! 


22 


BIOGRAPHICAL   SKETCHES, 


SKETCH 

OF  THE  LIFE  AND  CHARACTER  OF  THE  HON.  SAMUEL  DEXTER,  LL.  D. 


[This  sketch  formed  the  concluding  part  of  a  Charge,  delivered  to  the  Grand  Jury, 
at  the  Circuit  Court  holden  at  Boston,  in  the  District  of  Massachusetts,  in  May, 
1816;  and  was  then  published,  at  the  joint  request  of  the  Grand  Jury  and  the 
members  of  the  Bar  of  the  Circuit  Court.] 

I  have  now  finished  the  brief  review  of  those  offences,  which 
are  most  important  in  the  criminal  code  of  the  United  States.  And 
happy  should  I  be,  if  I  could  congratulate  you  on  the  peace  and 
general  prosperity  of  our  country,  without  mingling  emotions  of  a 
painful  nature.  But  how  is  it  possible  to  enter  this  hall  of  justice, 
and  cast  my  eyes  among  my  brethren  at  the  bar,  without  missing 
one,  who,  for  many  years,  has  been  its  distinguished  ornament  ? 

On  ordinary  occasions  of  the  loss  of  private  or  professional 
friends,  we  may  properly  bury  our  sorrows  in  our  own  bosoms. 
In  such  cases  the  public  do  not  feel  that  deep  sympathy,  which 
authorizes  us  to  speak  aloud  our  anguish  and  disquietude.  But 
when  such  men  as  Mr.  Dexter  die,  the  loss  is  emphatically  a  pub- 
lic loss,  and  the  mourners  are  the  whole  nation.  To  give  utterance 
to  our  feelings  is,  therefore,  a  solemn  duty.  It  is  fit,  that  the  ex- 
ample of  the  great  and  good  should  be  brought  forward,  for  the 
imitation  of  the  young  and  ambitious ;  that  gratitude  for  eminent 
services  should  find  a  voice,  as  public  as  the  deeds ;  and  that  ex- 
alted genius,  when  it  has  ceased  to  attract  admiration  by  its  living 
splendor,  should  be  consecrated  in  the  memories  of  those,  whom  it 
has  instructed  or  preserved. 

I  feel  assured,  therefore,  that  I  am  not  stepping  aside  from  the 
path  of  duty,  or  pressing  unduly  upon  your  attention,  by  devoting 
a  few  minutes  of  your  time  to  a  sketch  of  the  history  and  character 
of  this  illustrious  lawyer  and  statesman. 


174  BIOGRAPHICAL    SKETCHES. 

Mr.  Dexter  was  descended  from  a  highly  respectable  parentage. 
His  grandfather  was  a  clergyman.  His  father,  the  Hon.  Samuel 
Dexter,  was  a  merchant,  and  resided  many  years  at  Boston,  where 
his  son  Samuel  was  born  in  the  year  1761.  The  father  early 
distinguished  himself  in  the  struggles  between  the  Crown  and  the 
people  of  Massachusetts,  previous  to  the  revolution  ;  and,  for  his 
public  services,  was  several  times  elected  to  the  Council  by  the 
House  of  Representatives,  and  as  often  rejected  by  the  royal  gov- 
ernor of  the  province.  He  was  at  length  admitted  to  a  seat  in  the 
Council  by  the  prudence  or  the  fears  of  the  executive ;  but  in 
1774  was  again  negatived  "  by  the  express  command  of  his 
majesty."  Towards  the  close  of  his  life  he  retired  altogether  from 
public  affairs,  and  engaged  in  a  profound  investigation  of  the  great 
doctrines  of  theology.  At  his  death  he  bequeathed  a  handsome 
legacy  to  Harvard  University,  for  the  encouragement  of  biblical 
criticism  ;  and  upon  this  honorable  foundation  the  Dexter  lecture- 
ship has  since  been  established. 

Mr.  Dexter,  the  son,  after  the  usual  preparatory  studies,  was 
matriculated  at  Harvard  University  in  1777,  and  received  the  usual 
degree  of  bachelor  of  arts  in  1781.  During  his  residence  at  the 
University,  he  gave  ample  promise  of  those  talents,  which  shed  so 
much  lustre  on  his  riper  years.  At  a  public  exhibition  he  deliv- 
ered a  poem,  which  was  at  that  time  received  with  great  applause, 
and  is  still  considered  as  highly  creditable  to  his  taste  and  judg- 
ment. On  receiving  his  degree,  he  was  selected  for  the  first  literary 
honors  in  his  class,  which  he  sustained  with  increasing  reputation. 

He  now  determined  to  engage  in  the  profession  of  the  law,  a 
science,  whose  acute  distinctions,  and  logical  structure  were  wonder- 
fully adapted  to  invigorate  and  develop  the  powers  of  his  under- 
standing. He  passed  the  usual  preparatory  term  at  Worcester, 
under  the  tuition  of  the  Hon.  Levi  Lincoln,  then  an  eminent  coun- 
sellor at  the  bar,  and  since  Lieut.  Governor  of  the  Commonwealth. 
During  this  period,  and  for  several  years  after  his  admission  to  the 
bar,  Mr.  Dexter  devoted  himself  with  unceasing  assiduity  to  acquire 
the  elements  of  law;  and,  as  may  be  easily  supposed  from  his 
great  abilities,  he  was  completely  successful  in  his  purposes.  Not- 
withstanding many  discouragements  of  a  public  nature,  which,  at 
that  time,  pressed  heavily  on  young  lawyers,  Mr.  Dexter  rose 
rapidly  into  professional  notice,  and  soon  found  himself  surrounded 
with  clients  and  business.  In  a  short  time  he  was  chosen  to  the 
State   Legislature  ;    and   his   sound  judgment  and  comprehensive 


HON.    SAMUEL    DEXTER.  175 

policy  gave  him  great  weight  and  influence  in  all  the  deliberations 
of  that  body.  From  the  State  Legislature  he  was  transferred  to 
the  Congress  of  the  United  States,  being  first  elected  to  the  House 
of  Representatives,  and  afterwards  to  the  Senate,  by  the  suffrages 
of  his  native  state.  Perhaps  there  has  been  no  period,  since  the 
establishment  of  the  government,  which  more  imperiously  demanded 
all  the  foresight,  virtue,  and  discretion  of  the  ablest  statesmen,  than 
that,  in  which  Mr.  Dexter  was  called  to  assist  in  the  national  coun- 
cils. The  first  talents  in  the  respective  parties,  which  then  divided 
the  country,  were  drawn  into  Congress.  The  floors  of  the  two 
houses  became  a  vast  amphitheatre,  on  which  the  struggles  for 
political  power  and  principle  were  maintained,  with  all  the  eloquence 
of  rhetoric  and  strength  of  reasoning,  which  the  zeal  of  party  could 
enkindle  in  noble  minds.  The  most  deep  and  impassioned  feelings 
took  possession  of  the  nation  itself;  and  the  same  thrilling  sensa- 
tions, which  agitated  Congress,  electrified  the  whole  continent.  It 
seemed,  as  if  every  power  of  the  human  mind  was  summoned  to 
its  proper  business,  and  stretched  to  the  most  intense  exertion. 
Many  of  you  can  recall  the  emotions  of  those  days  ;  and  to  those  of 
us,  who  were  then  reposing  in  academic  shades,  the  light,  that 
burst  from  the  walls  of  Congress,  seemed  reflected  back  from  every 
cottage  in  the  country.  At  no  period  of  his  life,  did  Mr.  Dexter 
more  completely  sustain  his  reputation  for  extraordinary  talents. 
His  clear  and  forcible  argumentation,  his  earnest  and  affecting 
admonitions,  and  his  intrepid  and  original  development  of  princi- 
ples and  measures,  gave  him  a  weight  of  authority,  which  it  was 
diflicult  to  resist.  Perhaps  no  man  was  ever  heard  by  his  political 
opponents  with  more  profound  and  unaffected  respect. 

Mr.  Dexter  resigned  his  seat  in  the  Senate,  on  his  appointment 
as  Secretary  of  War,  under  the  administration  of  President  Adams. 
He  next  received  the  office  of  Secretary  of  the  Treasury  ;  and, 
(hiring  a  short  period  of  vacancy,  discharged  also  the  functions  of 
the  Department  of  State.  These  were  to  Mr.  Dexter  new  and 
untrodden  paths.  The  habits  of  his  life,  and  the  pursuits  of  his 
mind,  were  ill  suited  to  that  minute  diligence,  and  those  intricate 
details,  which  the  business  of  war  and  finance  unavoidably  impose 
upon  the  incumbents  of  office.  He  felt  a  great  reluctance  to  en- 
gage in  such  employments,  for  which  he  professed  no  peculiar  relish, 
and  in  which  his  forensic  discipline  and  senatorial  experience  might 
not  always  guide  him  to  correct  results.  His  acceptance  of  these 
high  stations  was  not,  therefore,  without  much  hesitation  ;  but  hav- 


176  BIOGRAPHICAL    SKETCHES. 

ing  accepted,  he  immediately  employed  the  whole  vigor  of  his 
mind  to  attain  the  mastery  of  all  their  multifarious  duties.  That 
he  fully  accomplished  his  purposes  can  be  no  surprise  to  those, 
who  knew  him.  Such  was  his  intellectual  capacity  and  discrimina- 
tion, that  what  he  had  the  wish  to  acquire  cost  him  far  less  than 
any  other  man.  The  readiness,  with  which  he  received  knowledge, 
seemed,  at  times,  almost  like  instantaneous  inspiration.  He  did  not 
often  choose  to  engage  in  laborious  inquiries  ;  but  he  had  the  ne- 
cessary firmness  and  perseverance  to  attain  whatever  was  essential 
to  his  ambition  or  public  duties. 

Towards  the  close  of  Mr.  Adams's  administration,  he  was  offered 
a  foreign  embassy,  which  he  declined  ;  and  upon  the  accession  of 
Mr.  Jefferson  to  the  presidency,  he  resigned  his  public  employ- 
ments, and  returned  to  the  practice  of  the  law  with  unabated  zeal. 
From  this  period  he  engaged  less  in  political  controversies  ;  and 
reserved  himself  principally  for  professional  or  theological  re- 
searches. He  had  always  accustomed  himself  to  an  independence 
of  thinking  upon  all  subjects,  legal,  political,  and  religious.  He 
subscribed  to  no  man's  creed,  and  dealt  in  the  dogmas  of  the 
school  of  no  master ;  but  he  examined,  and  weighed,  and  decided 
every  thing  for  himself.  He  observed,  or  thought  he  observed, 
that  parties  were  gradually  changing  their  policy  and  principles  ; 
and,  on  this  account,  he  seems  to  have  felt  less  desire  to  engage  in 
controversies,  where  his  judgment  and  political  friendships  might 
not  always  be  reconcilable.  On  two  memorable  occasions,  which 
are  yet  fresh  in  our  recollections,  he  took  an  active  political  part.  I 
refer  to  his  opposition  to  the  embargo  and  non-intercourse  system, 
and  his  support  of  the  late  war.  But,  except  in  these  instances,  he 
rarely,  if  ever,  appeared,  after  his  return  to  the  bar,  as  the  strenuous 
advocate  or  opposer  of  any  of  the  great  political  measures,  which 
agitated  the  nation.  It  was  not  that  he  looked  on  with  indifference, 
or  sought  to  evade  responsibility  by  equivocation  or  reserve.  On 
the  contrary,  he  was  always  frank,  communicative,  and  decided. 
But  his  judgment  was  so  little  in  unison  with  the  wishes  of  any 
party,  that  he  expressed  his  opinions,  rather  as  guides  of  his  own 
conduct,  than  from  a  hope  to  influence  others.  He  was  as  incapable 
of  deceiving  others,  as  he  was  of  deceiving  himself;  and  would 
rather  surrender  the  popularity  of  a  whole  life,  than  submit  his  own 
judgment  to  any  sect  in  church  or  state. 

It  is  not  unusual  for  men  of  eminence,  after  having  withdrawn  a 
few  years  from  the  bar,  to  find  it  difficult,  if  not  impracticable,  to 


HON.    SAMUEL    DEXTER.  177 

resume  their  former  rank  in  business.  Nothing  of  this  sort  occurred, 
to  check  the  progress  of  Mr.  Dexter.  He  was  immediately  en- 
gaged in  almost  all  the  important  causes  in  our  highest  courts  ;  and 
popular  favor  seemed  to  have  increased,  rather  than  diminished, 
during  his  temporary  retirement.  From  the  triumphs  and  victories 
of  the  state  bar,  his  reputation  soon  carried  him  to  the  Supreme 
Court  of  the  United  States,  where  it  has  been  my  pride  and  pleas- 
ure, for  many  years,  to  see  him  holding  his  career  in  the  foremost 
rank  of  advocates.  This  would  entitle  him  to  no  ordinary  praise ; 
for  that  bar  has  been  long  distinguished  by  the  presence  of  many  of 
the  most  illustrious  lawyers  in  the  Union. 

In  no  situation  have  the  admirable  talents  of  Mr.  Dexter  ap- 
peared with  more  unclouded  lustre,  than  in  his  attendance  on  the 
Supreme  Court  at  Washington.  For  several  years  he  passed  the 
winters  there,  under  engagements  in  many  of  the  most  important 
causes.  Rarely  did  he  speak  without  attracting  an  audience  com- 
posed of  the  taste,  the  beauty,  the  wit,  and  the  learning,  that 
adorned  the  city  ;  and  never  was  he  heard  without  instruction  and 
delight.  On  some  occasions,  involuntary  tears  from  the  whole  au- 
dience have  testified  the  touching  power  of  his  eloquence  and  pa- 
thos. On  others,  a  profound  and  breathless  silence  expressed,  more 
forcibly  than  any  human  language,  the  rivetted  attention  of  an  hun- 
dred minds.  I  well  remember  with  what  appropriate  felicity  he 
undertook,  in  one  cause,  to  analyze  the  sources  of  patriotism.  I 
wish  it  were  possible  to  preserve  the  whole  in  the  language,  in 
which  it  was  delivered.  No  one,  who  heard  him  describe  the 
influence  of  local  scenery  upon  the  human  heart,  but  felt  his  soul 
dissolve  within  him.  I  can  recall  but  imperfectly  a  single  passage  ; 
and,  stripped  of  its  natural  connexion,  it  affords  but  a  glimmering  of 
its  original  brightness.  "  We  love  not  our  country,''  said  the 
orator,  "  from  a  blind  and  unmeaning  attachment,  simply  because 
it  is  the  place  of  our  birth.  It  is  the  scene  of  our  earliest  joys 
and  sorrows.  Every  spot  has  become  consecrated  by  some  youth- 
ful sport,  some  tender  friendship,  some  endearing  affection,  some 
reverential  feeling.  It  is  associated  with  all  our  moral  habits,  our 
principles,  and  our  virtues.  The  very  sod  seems  almost  a  part  of 
ourselves,  for  there  are  entombed  the  bones  of  our  ancestors.  Even 
the  dark  valley  of  the  shadow  of  death  is  not  without  its  consola- 
tions, for  we  pass  it  in  company  with  our  friends."  In  a  still  more 
recent  instance,  and,  indeed,  in  one  of  the  last  causes  he  ever  argued, 
he  took  the  occasion  of  an  appropriate  discussion,  to  expound  his 
23 


178  BIOGRAPHICAL    SKETCHES. 

own  views  of  the  constitution,  and,  dropping  the  character  of  an 
advocate,  to  perform  the  paramount  duty  of  a  citizen.  He  seemed, 
as  if  giving  his  parting  advice  and  benedictions  to  his  country,  and 
as  if  he  had  worked  up  his  mind  to  a  mighty  effort  to  vindicate 
those  solid  maxims  of  government  and  policy,  by  which  alone  the 
union  of  the  states  can  be  upheld  and  perpetuated.  It  is  deeply 
to  be  regretted,  that  his  just  and  elevated  views  are  now  confined 
to  the  frail  memories  of  those,  who  heard  him. 

In  the  spring  of  1815,  Mr.  Dexter  was  requested  by  President 
Madison  to  accept  an  extraordinary  mission  to  the  court  of  Spain  ; 
but,  from  a  reluctance  to  go  abroad,  he  declined  the  appointment. 

During  the  last  winter,  Mr.  Dexter  was,  for  a  few  days,  afflicted 
with  the  epidemic  prevailing  at  Washington  ;  and  was  once  com- 
pelled, from  indisposition,  to  stop  in  the  argument  of  a  cause.  He 
had,  however,  entirely  recovered,  and  never  seemed  in  better 
health.  On  his  return  from  Washington,  he  went,  with  his  family, 
to  Athens,  in  the  state  of  New  York,  to  assist  in  the  celebration  of 
the  nuptials  of  his  son.  He  arrived  there  on  Tuesday,  the  thirtieth 
of  April,  somewhat  unwell  ;  but  no  serious  alarm  for  his  safety 
existed  until  the  day  previous  to  his  death.  Finding  his  dissolution 
approaching,  he  gave  the  proper  directions  respecting  his  affairs, 
and  prepared  to  meet  his  fate  with  the  calmness  of  a  Christian 
philosopher.  He  could  look  back  on  a  life  devoted  to  virtuous 
pursuits  without  reproach,  and  his  regrets  could  only  be  for  his 
family  and  his  country.  About  midnight,  on  Friday,  the  third  of 
May,  he  lost  his  senses;  and,  in  three  hours  afterwards,  he  expired 
in  the  arms  of  his  family,  without  a  struggle  or  a  groan. 

Such  was  the  life  and  such  the  death  of  Mr.  Dexter.  I  forbear 
to  give  a  minute  account  of  the  literary  honors,  which  he  received, 
and  of  the  public  institutions,  of  which  he  was  a  member.  I  am 
aware,  how  little  I  am  qualified  for  the  office  of  his  biographer  ; 
but  I  have  this  consolation,  that  he  needs  no  other  panegyric  but 
truth.  I  will  close  these  hasty  sketches  with  a  few  remarks  on  his 
person,  character,  manners,  and  acquirements. 

In  his  person,  Mr.  Dexter  was  tall,  and  well  formed;  of  strong, 
well  defined  features,  and  bold,  muscular  proportions.  His  manners 
were,  at  a  first  interview,  reserved  and  retiring ;  and  this  was  some- 
times mistaken  by  a  careless  observer  for  austerity  or  pride.  But 
this  impression  vanished  on  a  farther  acquaintance  ;  and  it  was  soon 
perceived,  that,  though  he  made  no  effort  to  court  popularity,  he 
was  frank,  manly,  and  accessible ;  and  at  the  bar  conciliatory  and 


HON.    SAMUEL    DEXTER.  179 

respectful.  His  countenance  was  uncommonly  striking  ;  and  yet, 
perhaps,  scarcely  gave  at  once  the  character  of  his  mind.  Unless 
awakened  by  strong  interests,  his  features  relaxed  into  a  repose, 
which  betrayed  'little  of  his  intellectual  grandeur.  In  such  situations 
his  eyes  had  a  tranquil  mildness,  which  seemed  better  suited  to  an 
habitual  indolence  of  temperament,  than  to  fervid  thoughts.  Yet 
a  curious  observer  might  read  in  his  face  the  traces  of  a  contem- 
plative mind,  sometimes  lost  in  reveries,  and  sometimes  devoted  to 
the  most  intense  abstractions  of  metaphysics.  When  roused  into 
action,  his  features  assumed  a  new  aspect.  A  steady  stream  of 
light  emanated  from  his  eyes,  the  muscles  of  his  face  swelled  with 
emotion,  and  a  slight  flush  chafed  his  pallid  cheeks.  His  enuncia- 
ation  was  remarkably  slow,  distinct,  and  musical ;  though  the 
intonations  of  his  voice  were  sometimes  too  monotonous.  His 
language  was  plain,  but  pure  and  well  selected;  and,  though  his 
mind  was  stored  with  poetic  images,  he  rarely  indulged  himself  in 
ornaments  of  any  kind.  If  a  rhetorical  illustration,  or  striking 
metaphor  sometimes  adorned  his  speeches,  they  seemed  the  spon- 
taneous burst  of  his  genius,  produced  without  effort,  and  dismissed 
without  regret.  They  might,  indeed,  be  compared  to  those  spots  of 
beautiful  verdure,  which  are  scattered  here  and  there  in  Alpine 
regions,  amidst  the  dazzling  whiteness  of  surrounding  snows.  In 
the  exordiums  of  his  speeches  he  was  rarely  happy.  It  seemed 
the  first  exercise  of  a  mind  struggling  to  break  its  slumbers,  or  to 
control  the  torrent  of  its  thoughts.  As  he  advanced,  he  became 
collected,  forcible,  and  argumentative ;  and  his  perorations  were 
uniformly  grand  and  impressive.  They  were  often  felt,  when  they 
could  not  be  followed. 

Such  was  the  general  character  of  his  delivery.  But  it  would 
be  a  great  mistake  to  suppose,  because  his  principal  favorite  was 
ratiocination,  that  his  delivery  was  cold,  tame,  or  uninteresting. 
I  am  persuaded,  that  nature  had  given  him  uncommon  strength  of 
passions.  The  natural  characteristics  of  his  mind  were  fervor  and 
force  ;  and,  left  to  the  mere  workings  of  his  own  genius,  he  would 
have  been  impetuous  and  vehement.  But  he  seemed  early  to  have 
assumed  the  mastery  of  his  mind  ;  to  have  checked  its  vivid  move- 
ments by  habitual  discipline  ;  and  bound  his  passions  in  the  adaman- 
tine chains  of  logic  and  reasoning.  The  dismissal  of  the  graces  of 
fancy  and  of  picturesque  description  were  with  him  a  matter  of 
choice,  and  not  of  necessity.  He  resigned  them,  as  Hercules 
resigned  pleasure,  not  because  he  was  insensible  of  its  charms,  but 


180  BIOGRAPHICAL  SKETCHES. 

because  be  was  more  enamoured  of  wisdom.  Yet,  as  if  to  show 
his  native  powers,  he  has  sometimes  let  loose  the  enthusiasm  of  his 
genius,  and  touched  with  a  master's  hand  every  chord  of  the  pas- 
sions, and  alternately  astonished,  delighted,  and  melted  his  hearers. 
Something  of  the  same  effect  has  been  produced  by,  what  may  be 
fitly  termed,  the  moral  sublimity  of  his  reasoning.  He  opened  bis 
arguments  in  a  progressive  order,  erecting  each  successive  position 
upon  some  other,  whose  solid  mass  be  bad  already  established  on 
an  immovable  foundation,  till  at  last  the  superstructure  seemed, 
by  its  height  and  ponderous  proportions,  to  bid  defiance  to  the 
assaults  of  human  ingenuity.  I  am  aware,  that  these  expressions 
may  be  deemed  the  exaggerations  of  fancy  ;  but  I  only  describe 
what  I  have  felt  on  my  own  mind  ;  and  I  gather  from  others,  that 
I  have  not  been  singular  in  my  feelings. 

It  would  be  invidious  to  compare  Mr.  Dexter  With  other  illus- 
trious men  of  our  country,  either  living  or  dead.  In  general  ac- 
quirements be  was  unquestionably  inferior  to  many  ;  and  even  in 
professional  science  be  could  scarcely  be  considered,  as  very  pro- 
found, or  very  learned.  He  had  a  disinclination  to  the  pages  of 
black-lettered  law,  which  be  sometimes  censured  as  the  scholastic 
refinements  of  monkish  ages;  and  even  for  the  common  branches 
of  technical  science,  the  doctrines  of  special  pleading,  and  the 
niceties  of  feudal  tenures,  be  professed  to  feel  little  of  love  or  rev- 
erence. His  delight  was  to  expatiate  in  the  elements  of  jurispru- 
dence, and  to  analyze  and  combine  the  great  principles  of  equity 
and  reason,  which  distinguish  the  branches  of  maritime  law.  In 
commercial  causes,  therefore,  he  shone  with  peculiar  advantage. 
His  comprehensive  mind  was  familiar  with  all  the  leading  distinc- 
tions of  tins  portion  of  law ;  and  he  marked  out,  with  wonderful 
sagacity  and  promptitude,  the  almost  evanescent  boundaries,  which 
sometimes  separate  its  principles.  Indeed  it  may  be  truly  said  of 
him,  that  be  could  walk  a  narrow  isthmus  between  opposing  doc- 
trines, where  no  man  dared  to  follow  him.  The  law  of  prize  and 
of  nations  were  also  adapted  to  bis  faculties ;  and  no  one,  who 
heard  him  upon  these  topics,  but  was  compelled  to  confess,  that,  if 
he  was  not  always  convincing,  he  was  always  ingenious;  and  that, 
when  be  attempted  to  shake  a  settled  rule,  though  be  might  be 
wrong  upon  authority  and  practice,  be  was  rarely  wrong  upon  the 
principles  of  international  justice. 

In  short,  there  have  been  men  more  thoroughly  imbued  with  all 
the  fine  tinctures  of  classic  taste  ;  men  of  more   playful  and  culti- 


HON.    SAMUEL    DEXTER.  181 

vated  imaginations ;  of  more  deep  and  accurate  research  ;  and  of 
more  various  and  finished  learning.  But  if  the  capacity  to  examine 
a  question  by  the  most  comprehensive  analysis;  to  subject  all  its 
relations  to  the  test  of  the  most  subtle  logic  ;  and  to  exhibit  them 
in  perfect  transparency  to  the  minds  of  others;  —  if  the  capacity 
to  detect,  with  an  unerring  judgment,  the  weak  points  of  an  argu- 
ment, and  to  strip  off  every  veil  from  sophistry  or  error  ;  —  if  the 
capacity  to  seize,  as  it  were  by  intuition,  the  learning  and  arguments 
of  others,  and  instantaneously  to  fashion  them  to  his  own  purposes; 
—  if,  I  say,  these  constitute  some  of  the  highest  prerogatives  of 
genius,  it  will  be  difficult  to  find  many  rivals,  or  superiors  to  Mr. 
Dexter.  In  the  sifting  and  comparison  of  evidence,  and  in  mould- 
ing its  heterogeneous  materials  into  one  consistent  mass,  the  bar 
and  the  bench  have  pronounced  him  almost  inimitable. 

His  eloquence  was  altogether  of  an  original  cast.  It  had  not  the 
magnificent  coloring  of  Burke,  nor  the  impetuous  flow  of  Chatham. 
It  moved  along  in  majestic  simplicity,  like  a  mighty  stream,  quick- 
ening and  fertilizing  every  thing  in  its  course.  He  persuaded, 
without  seeming  to  use  the  arts  of  persuasion  ;  and  convinced, 
without  condescending  to  solicit  conviction.  No  man  was  ever 
more  exempt  from  finesse  or  cunning  in  addressing  a  jury.  He 
disdained  the  little  arts  of  sophistry  or  popular  appeal.  It  was,  in 
his  judgment,  something  more  degrading  than  the  sight  of  Achilles 
playing  with  a  lady's  distaff.  It  was  surrendering  the  integrity,  as 
well  as  honor,  of  the  bar.  His  conduct  afforded,  in  these  particu- 
lars, an  excellent  example  for  young  counsellors,  which  it  would  be 
well  for  them  to  imitate,  even  though  they  should  follow  in  his  path 
with  unequal  footsteps. 

His  studies  were  not  altogether  of  a  professional  nature.  He 
devoted  much  time  to  the  evidences  and  doctrines  of  Christianity  ; 
and  his  faith  in  its  truths  was  fixed  after  the  most  elaborate  inqui- 
ries. That  he  was  most  catholic  and  liberal  in  his  views,  is  known 
to  us  all ;  but,  except  to  his  intimate  friends,  it  is  little  known,  how 
solicitous  he  was  to  sustain  the  credibility  of  the  Christian  system  ; 
and  how  ingenuous  and  able  were  his  expositions  of  its  doctrines. 

As  a  statesman,  it  is  impossible  to  regard  his  enlightened  policy 
and  principles  without  reverence.  He  had  no  foreign  partialities, 
or  prejudices,  to  indulge,  or  gratify.  All  his  affections  centred  in 
his  country ;  all  his  wishes  were  for  its  glory,  independence,  and 
prosperity.  The  steady  friend  of  the  constitution  of  the  United 
States,  he  was,  in  the   purest   and   most  appropriate   sense  of  the 


18-2  BIOGRAPHICAL    SKETCHES. 

term?,  a  patriot  and  a  republican.  He  considered  the  union  of  the 
State-,  as  the  polestar  of  our  liberties;  and,  whatever  might  be  his 
opinion  of  any  measures,  he  never  breathed  a  doubt,  to  shake 
public  or  private  confidence  in  the  excellence  of  the  constitution 
itself.  W  hen  others  sank  into  despondency  at  the  gloomy  aspect 
of  public  affairs,  and  seemed  almost  ready  to  resign  their  belief  in 
republican  institutions,  he  remained  their  inflexible  advocate.  He 
was  neither  dismayed  by  the  intemperance  of  parties,  nor  by 
the  indiscretion  of  rulers.  He  believed  in  the  redeeming  power  of 
a  tree  constitution  ;  and  that,  though  the  people  might  sometimes 
be  deceived,  to  their  intelligence  and  virtue  we  might  safely  trust, 
to  equalize  all  the  eccentricities  and  perturbations  of  the  political 
system.  He  bad  the  singular  fortune,  at  different  times,  to  be  the 
favorite  of  different  parties,  occupying  in  each  the  same  elevation. 
It  is  not  my  purpose  to  examine,  or  vindicate  his  conduct  in  either 
of  these  situations.  I  feel,  indeed,  that  I  am  already  treading  upon 
ashes  thinly  strewed  over  living  embers.  The  present  is  not  the 
time  for  an  impartial  estimate  of  his  political  conduct.  That  duty 
belongs,  and  may  be  safely  left,  to  posterity.  Without  pretending 
to  anticipate  their  award,  we  may  with  some  confidence  affirm,  that 
the  fame  of  Mr.  Dexter  has  little  to  fear  from  the  most  rigid 
scrutiny.  While  he  lived,  he  might  be  claimed  with  pride  by  any 
party  ;   but  now  that  he  is  dead,  he  belongs  to  bis  country. 

To  conclude;  —  Mr.  Dexter  was  a  man  of  such  rare  endow- 
ments, that,  in  whatever  age  or  nation  be  had  lived,  be  would  have 
been  in  the  first  rank  of  professional  eminence.  It  is  unfortunate, 
that  he  has  left  no  written  record  of  himself.  The  only  monument 
of  bis  fame  rests  in  the  frail  recollections  of  memory,  and  can  reach 
future  ages  only  through  the  indistinctness  of  tradition  or  history. 
His  glowing  thoughts,  his  brilliant  periods,  and  his  profound  reason- 
ings, have  perished  for  ever.  They  have  passed  away,  like  a  dream, 
or  a  shadow.  He  is  gathered  to  his  fathers  ;  and  his  lips  are  closed 
in  the  silence  of  death. 

I  rejoice  to  have  lived  in  the  same  age  with  him  ;  and  to  have 
been  permitted  to  bear  his  eloquence,  and  to  lie  instructed  by  his 
wisdom.  I  mourn,  that  my  country  has  lost  a  patriot  without  fear 
or  reproach.  The  glory,  that  has  settled  on  his  tomb,  will  not  be 
easily  obscured  ;  and  if  it  shall  grow  dim  in  the  lapse  of  time,  I 
trust,  that  some  faithful  historian  will  preserve  the  character  of  his 
mind  in  pages,  that  can  perish  only  with  the  language,  in  which 
they  are  written. 


MEMOIR 


OF    THE    HON.  JOHN    MARSHALL,    LL.   D.,   CHIEF  JUSTICE  OF  THE  SUPREME 
COURT   OF  THE    UNITED   STATES. 


[First  published  in  the  National  Portrait  Gallery,  1833.] 

John  Marshall,  (the  present  Chief  Justice  of  the  United 
States,)  was  born  in  Fauquier  county,  in  the  state  of  Virginia,  on 
the  24th  of  September,  1755.  His  father  was  Thomas  Marshall, 
of  the  same  state  ;  who  served  with  great  distinction  in  the  revo- 
lutionary war,  as  a  colonel  in  the  line  of  the  continental  army. 
Colonel  Marshall  was  a  planter,  of  a  very  small  fortune,  and  had 
received  but  a  narrow  education.  These  deficiencies,  however, 
were  amply  supplied  by  the  gifts  of  nature.  His  talents  were  of 
a  high  order,  and  he  cultivated  them  with  great  diligence  and 
perseverance  ;  so  that  he  maintained,  throughout  his  whole  life, 
among  associates  of  no  mean  character,  the  reputation  of  being  a 
man  of  extraordinary  ability.  No  better  proof  need  be  adduced, 
to  justify  this  opinion,  than  the  fact,  that  he  possessed  the  un- 
bounded confidence,  admiration,  and  reverence  of  all  his  children, 
at  the  period  of  life,  when  they  were  fully  able  to  appreciate  his 
worth,  and  compare  him  with  other  men  of  known  eminence. 
There  are  those  yet  living,  who  have  often  listened  with  delight 
to  the  praises  bestowed  on  him  by  filial  affection  ;  and  have  heard 
the  declaration,  emphatically  repeated  from  the  lips  of  one  of  his 
most  gifted  sons,  that  his  father  was  an  abler  man  than  any  of  his 
children.  Such  praise  from  such  a  source  is  beyond  measure  pre- 
cious. It  warms,  while  it  elevates.  It  is  a  tribute  of  gratitude  to 
the  memory  of  a  parent,  after  death  has  put  the  last  seal  upon  his 
character,  and  at  a  distance  of  time,  when  sorrow  has  ceased  its 
utterance,  and  left  behind  it  the  power  calmly  to  contemplate  his 
excellence. 


184  BIOGRAPHICAL,    SKETCHES. 

Colonel  Marshal]  had  fifteen  children,  seven  of  whom  are  now 
living  ;  and  it  has  long  been  a  matter  of  public  fame,  that  all  the 
children,  females  as  well  as  males,  possessed  superior  intellectual 
endowments.  John  was  the  eldest  child  ;  and  was,  of  course,  the 
first  to  engage  the  solicitude  of  his  father.  In  the  local  position  of 
the  family,  at  that  time  almost  upon  the  frontier  settlements  of  the 
country,  (for  Fauquier  was  a  frontier  county,)  it  was  of  course, 
that  the  early  education  of  all  the  children  should  devolve  upon 
its  head.  Colonel  Marshall  superintended  the  studies  of  his  eldest 
son,  and  gave  him  a  decided  taste  for  English  literature,  and 
especially  for  history  and  poetry.  At  the  age  of  twelve  he  had 
transcribed  Pope's  Essay  on  Man,  and  also  some  of  his  moral 
essays.  The  love  of  poetry,  thus  awakened  in  his  warm  and 
vigorous  mind,  never  ceased  to  exert  a  commanding  influence  over 
it.  He  became  enamoured  of  the  classical  writers  of  the  old  school, 
and  was  instructed  by  their  solid  sense  and  their  beautiful  imagery. 
In  the  enthusiasm  of  youth,  he  often  indulged  himself  in  poetical 
compositions ;  and  freely  gave  up  his  hours  of  leisure  to  those 
delicious  dreamings  of  the  muse,  which  (say,  what  we  may)  consti- 
tute some  of  the  purest  sources  of  pleasure  in  the  gay  scenes  of 
life,  and  some  of  the  sweetest  consolations  in  adversity  and  affliction, 
throughout  every  subsequent  period  of  it.  It  is  well  known,  that 
he  has  continued  to  cultivate  this  favorite  study,  and  to  read  with 
intense  interest  the  gay,  as  well  as  the  loftier,  productions  of  the 
divine  art.  One  of  the  best  recommendations  of  the  taste  for 
poetry  in  early  life  is,  that  it  does  not  die  with  youth  ;  but  affords 
to  maturer  years  an  invigorating  energy,  and  to  old  age  a  serene 
and  welcome  employment,  always  within  reach,  and  always  coming 
with  a  fresh  charm.  Its  gentle  influence  is  then  like  that  so  hap- 
pily treated  by  Gray.     The  lover  of  the  muses  may  truly  say, 

"  I  feel  the  gales,  that  round  ye  blow, 
A  momentary  bliss  bestow  ; 
As,  waving  fresh  their  gladsome  wing, 
My  weary  soul  they  seem  to  soothe, 
And,  redolent  of  joy  and  youth, 
To  breathe  a  second  spring." 

The  contrast,  indeed,  is  somewhat  striking  between  that  close 
reasoning,  which  almost  lejects  the  aid  of  ornament,  in  the  juridical 
labors  of  the  Chief  Justice,  and  that  generous  taste,  which  devotes 
itself  with  equal  delight  to  the  works  of  fiction  and  song.  Yet 
the  union  has  been  far  less  uncommon  than  slight  observers  are  apt 
to  imagine.     Lord  Hardwicke  and  Lord  Mansfield  had  an  ardent 


CHIEF    JUSTICE    MARSHALL. 


185 


thirst  for  general  literature,  and  each  of  them  was  a  cultivator,  if 
not  a  devotee,  of  the  lighter  productions  of  the  imagination. 

There  being  at  that  time  do  grammar-school  in  the  part  of  the 
country,  where  Colonel  Marshall  resided,  his  son  was  sent,  at  the 
age  of  fourteen,  about  a  hundred  miles  from  home,  and  placed 
under  the  tuition  of  a  Mr.  Campbell,  a  clergyman  of  great  re- 
spectahility.  He  remained  with  him  a  year,  and  then  returned 
home,  and  was  put  under  the  care  of  a  Scotch  gentleman,  who 
was  just  introduced  into  the  parish,  as  pastor,  and  resided  in  his 
father's  family.  He  pursued  his  classical  studies  under  this  gen- 
tleman's direction,  while  he  remained  in  the  family,  which  was 
about  a  year  ;  and  at  the  termination  of  it,  he  had  commenced 
reading  Horace  and  Livy.  His  subsequent  mastery  of  the  clas- 
sics was  the  result  of  his  own  efforts,  without  any  other  aid  than 
his  grammar  and  dictionary.  He  never  had  the  benefit  of  an 
education  at  any  college,  and  his  attainments  in  learning  have  been 
nursed  by  the  solitary  vigils  of  his  own  genius.  His  father,  bow- 
ever,  continued  to  superintend  his  English  education,  to  cherish 
his  love  of  knowledge,  to  give  a  solid  cast  to  his  acquirements,  and 
to  store  his  mind  with  the  most  valuable  materials.  He  was  not 
merely  a  watchful  parent,  but  an  instructive  and  affectionate  friend  ; 
and  soon  became  the  most  constant,  as  he  was  at  the  time  almost 
the  only  intelligent,  companion  of  his  son.  The  time,  not  devoted 
to  his  society,  was  passed  in  hardy,  athletic  exercises,  and  probably 
to  this  circumstance  is  owing  that  robust  constitution,  which  yet 
seems  fresh  and  firm  in  a  green  old  age. 

About  the  time  when  young  Marshall  entered  his  eighteenth 
year,  the  controversy  between  Great  Britain  and  her  American 
colonies  began  to  assume  a  portentous  aspect ;  and  engaged,  and 
indeed  absorbed,  the  attention  of  all  the  colonists,  whether  they 
were  young,  or  old,  in  private  and  secluded  life,  or  in  political  and 
public  bodies.  He  entered  into  it  with  all  the  zeal  and  enthusiasm 
of  a  youth,  full  of  love  for  his  country  and  liberty,  and  deeply 
sensible  of  its  rights  and  its  wrongs.  He  devoted  much  time  to 
acquiring  the  first  rudiments  of  military  exercise,  in  a  voluntary, 
independent  company,  composed  of  gentlemen  of  the  county  ;  to 
training  a  militia  company  in  the  neighbourhood  ;  and  to  reading 
the  political  essays  of  the  day.  For  these  animating  pursuits,  the 
preludes  of  public  resistance,  he  was  quite  content  to  relinquish  the 
classics,  and  the  less  inviting,  but,  with  reference  to  his  future  des- 
tiny, the  more  profitable,  Commentaries  of  Sir  William  Blacks  tone. 
24 


186  BIOGRAPHICAL    SKETCHES. 

In  the  summer  of  1775,  he  received  an  appointment  as  first 
lieutenant  in  a  company  of  minute-men,  enrolled  for  actual  service, 
who  were  assembled  in  battalion  on  the  first  of  the  ensuing  Sep- 
tember. In  a  few  days  they  were  ordered  to  march  into  the  lower 
country,  for  the  purpose  of  defending  it  against  a  small  regular  and 
predatory  force  commanded  by  Lord  Dunmore.  They  constituted 
part  of  the  troops  destined  for  the  relief  of  Norfolk;  and  Lieu- 
tenant Marshall  was  engaged  in  the  battle  of  the  Great  Bridge, 
where  the  British  troopSj  under  Lord  Dunmore,  were  repulsed  with 
great  gallantry.  The  way  being  thus  opened  by  the  retreat  of  the 
British,  he  marched  with  the  provincials  to  Norfolk,  and  was 
present  when  that  city  was  set  on  fire  by  a  detachment  from  the 
British  ships,  then  lying  in  the  river. 

In  July,  177(5,  he  was  appointed  first  lieutenant  in  the  eleventh 
Virginia  regiment  on  the  continental  establishment ;  and  in  the 
course  of  the  succeeding  winter,  he  marched  to  the  north,  where, 
in  May,  1777,  he  was  promoted  to  the  rank  of  captain.  He  was 
subsequently  engaged  in  the  skirmish  at  Iron  Hill  with  the  light 
infantry,  and  fought  in  the  memorable  battles  of  Brandywine,  Ger- 
mantown,  and  Monmouth. 

That  part  of  the  Virginia  line,  which  was  not  ordered  to  Charles- 
ton, S.  C,  being  in  effect  dissolved  by  the  expiration  of  the 
term  of  enlistment  of  the  soldiers,  the  officers  (among  whom  was 
Captain  Marshall)  were,  in  the  winter  of  1779-80,  directed  to 
return  home,  in  order  to  take  charge  of  such  men  as  the  state 
legislature  should  raise  for  them.  It  was  during  this  season  of 
inaction,  that  he  availed  himself  of  the  opportunity  of  attending 
a  course  of  law  lectures  given  by  Mr.  Wythe,  afterwards  chan- 
cellor of  the  state  ;  and  a  course  of  lectures  on  natural  philosophy, 
given  by  Mr.  Madison,  president  of  William  and  Mary  College  in 
Virginia.  He  left  this  college  in  the  summer  vacation  of  1780, 
and  obtained  a  license  to  practise  law.  In  October  he  returned  to 
the  army,  and  continued  in  service  until  the  termination  of  Arnold's 
invasion.  After  this  period,  and  before  the  invasion  of  Phillips, 
in  February,  1781,  there  being  a  redundancy  of  officers  in  the 
Virginia  line,  he  resigned  his  commission. 

During  the  invasion  of  Virginia,  the  courts  of  law  were  sus- 
pended, and  were  not  reopened  until  after  the  capitulation  of 
Lord  Cornwallis.  Immediately  after  that  event,  Mr.  Marshall 
commenced  the  practice  of  law,  and  soon  rose  into  distinction  at 
the  bar. 


CHIEF    JUSTICE    MARSHALL. 


187 


In  the  spring  of  1782,  he  was  elected  a  member  of  the  state 
legislature,  and,  in  the  autumn  of  the  same  year,  a  member  of  the 
executive  council.  In  January,  1783,  he  married  Miss  Ambler, 
the  daughter  of  a  gentleman,  who  was  then  treasurer  of  the  state, 
and  to  whom  he  had  become  attached  before  he  left  the  army. 
This  lady  lived  for  nearly  fifty  years  after  her  marriage,  to  partake 
and  to  enjoy  the  distinguished  honors  of  her  husband.  In  1784, 
he  resigned  his  seat  at  the  council-board,  in  order  to  return  to  the 
bar  ;  and  he  was,  immediately  afterwards,  again  elected  a  member 
of  the  legislature  for  the  county  of  Fauquier,  of  which  he  was 
then  only  nominally  an  inhabitant,  his  actual  residence  being  at 
Richmond.  In  1787,  he  was  elected  a  member  from  the  county 
of  Henrico;  and,  though  at  that  time  earnestly  engaged  in  the 
duties  of  his  profession,  he  embarked  largely  in  the  political  ques- 
tions, which  then  agitated  the  state,  and,  indeed,  the  whole  con- 
federacy. 

Every  person,  at  all  read  in  our  domestic  history,  must  recollect 
the  dangers  and  difficulties  of  those  days.  The  termination  of  the 
revolutionary  war  left  the  country  impoverished  and  exhausted  by 
its  expenditures,  and  the  national  finances  at  a  low  state  of  depres- 
sion. The  powers  of  Congress  under  the  confederation,  which, 
even  during  the  war,  were  often  prostrated  by  the  neglect  of  a 
single  state  to  enforce  them,  became,  in  the  ensuing  peace,  utterly 
relaxed  and  inefficient.  Credit,  private  as  well  as  public,  was  de- 
stroyed. Agriculture  and  commerce  were  crippled.  The  delicate 
relation  of  debtor  and  creditor  became  daily  more  and  more  embar- 
rassed and  embarrassing  ;  and,  as  is  usual  upon  such  occasions,  every 
sort  of  expedient  was  resorted  to  by  popular  leaders,  as  well  as  by 
men  of  desperate  fortunes,  to  inflame  the  public  mind,  and  to  bring 
into  odium  those,  who  labored  to  preserve  the  public  faith,  and  to 
establish  a  more  energetic  government.  The  whole  country  was 
soon  divided  into  two  great  parties,  the  one  of  whicrTendeavoured 
to  put  an  end  to  the  public  evils,  by  the  establishment  of  a  gov- 
ernment over  the  Union,  which  should  be  adequate  to  all  .its 
exigencies,  and  act  directly  on  the  people  ;  the  other  was  devoted 
to  state  authority,  jealous  of  all  federal  influence,  and  determined, 
at  every  hazard,  to  resist  its  increase. 

It  is  almost  unnecessary  to  say,  that  Mr.  Marshall  could  not 
remain  an  idle  or  indifferent  spectator  of  such  scenes.  As  little 
doubt  could  there  be  of  the  part  he  would  take  in  such  a  contest. 
He  was  at  once  arrayed  on  the   side  of  Washington   and  Madison. 


188  BIOGRAPHICAL    SKETCHES. 

In  Virginia,  as  every  where  else,  the  principal  topics  of  the  day 
were  paper  money,  the  collection  of  taxes,  the  preservation  of 
public  faith,  and  the  administration  of  civil  justice.  The  parties 
were  nearly  equally  divided  upon  all  these  topics;  and  the  contest 
concerning  them  was  continually  renewed.  In  such  a  state  of 
things,  every  victory  was  but  a  temporary  and  questionable  triumph, 
and  every  defeat  still  left  enough  of  hope  to  excite  to  new  and 
strenuous  exertions.  The  affairs,  too,  of  the  confederacy  were 
then  at  a  crisis.  The  question  of  the  continuance  of  the  Union, 
or  a  separation  of  the  states,  was  freely  discussed  ;  and,  what  is 
almost  startling  now  to  repeat,  either  side  of  it  was  maintained 
without  reproach.  Mr.  Madison  was  at  this  time,  and  had  been 
for  two  or  three  years,  a  member  of  the  house  of  delegates,  and 
was  in  fact  the  author  of  the  resolution  for  the  general  convention 
at  Philadelphia,  to  revise  the  confederation.  He  was  at  all  times 
the  enlightened  advocate  of  union,  and  of  an  efficient  federal 
government,  and  he  received  on  all  occasions  the  steady  support 
of  Mr.  Marshall.  Many  have  witnessed,  with  no  ordinary 
emotions,  the  pleasure,  with  which  both  of  these  gentlemen  look 
back  upon  their  cooperation  at  that  period,  and  the  sentiments  of 
profound  respect,  with  which  they  habitually  regard  each  other. 

Both  of  them  were  members  of  the  convention,  subsequently 
called  in  Virginia,  for  the  ratification  of  the  federal  constitution. 
This  instrument,  having  come  forth  under  the  auspices  of  General 
"Washington  and  other  distinguished  patriots  of  the  Revolution,  was 
at  first  favorably  received  in  Virginia  ;  but  it  soon  encountered  de- 
cided hostility.  Its  defence  was  uniformly  and  most  powerfully 
maintained  there  by  Mr.  Marshall. 

The  debates  of  the  Virginia  convention  are  in  print.  But  we 
have  been  assured  by  the  highest  authority,  that  the  printed  vol- 
ume affords  but  a  very  feeble  and  faint  sketch  of  tie  actual  de- 
bates on  that  occasion,  or  of  the  vigor,  with  which  everj  attack  was 
unred,  and  every  onset  repelled,  against  the  constitution.  The  best 
talents  of  the  state  were  engaged  in  the  controversy.  The  princi- 
pal debates  were  conducted  by  Patrick  Henry  and  James  Madison, 
as  leaders.  But  on  three  great  occasions,  namely,  the  debates  on 
the  power  of  taxation,  the  power  over  the  militia,  and  the  power 
of  the  judiciary,  Mr.  Marshall  gave  free  scope  to  his  genius,  and 
argued  with  a  most  commanding  ability. 

It  is  very  difficult  for  the  present  generation  to  conceive  the 
magnitude  of  the  dangers,  to  which  we    were   then  exposed,  or  to 


CHIEF    JUSTICE    MARSHALL.  189 

realize  the  extent  of  the  obstacles,  which  were  opposed  to  the 
adoption  of  the  constitution.  Notwithstanding  all  the  sufferings  of 
the  people,  the  acknowledged  imbecility  of  the  government,  and 
the  almost  desperate  state  of  our  public  affairs,  there  were  men  of 
high  character,  and  patriots  too,  who  clung  to  the  old  confedera- 
tion with  an  enthusiastic  attachment,  and  saw  in  the  grant  of  any 
new  powers,  indeed  of  any  powers,  to  a  national  government, 
nothing  but  oppression  and  tyranny, —  slavery  of  the  people  and 
destruction  of  the  state  governments  on  the  one  hand,  and  univer- 
sal despotism  and  overwhelming  taxation  on  the  other.  Time,  the 
great  umpire  and  final  judge  of  these  questions,  has,  indeed,  now, 
abundantly  shown,  how  vain  were  the  fears,  and  how  unsound  the 
principles  of  the  opponents  of  the  constitution.  The  prophecies 
of  its  friends  have  been  abundantly  fulfilled,  in  the  growth  and 
solid  prosperity  of  their  country  ;  far,  indeed,  beyond  their  most 
sanguine  expectations.  But  our  gratitude  can  never  be  too  warm 
to  those  eminent  men,  who  stemmed  the  torrent  of  public  prejudice, 
and,  with  a  wisdom  and  prudence,  almost  surpassing  human  power, 
laid  the  foundations  of  that  government,  which  saved  us  at  the 
hour,  when  we  were  ready  to  perish.  After  twenty-five  days 
of  ardent  and  eloquent  discussion,  to  which  justice  never  has 
been,  and  never  can  now  be  clone,  (during  which  nine  states 
adopted  the  constitution,)  the  question  was  carried  in  its  favor  in 
the  convention  of  Virginia  by  a  majority  of  ten  votes  only. 

The  adoption  of  the  constitution  of  the  United  States  having 
been  thus  secured,  Mr.  Marshall  immediately  formed  the  deter- 
mination to  relinquish  public  life,  and  to  devote  himself  to  the 
arduous  duties  of  his  profession.  A  man  of  his  eminence  could, 
however,  with  very  great  difficulty  adhere  rigidly  to  his  original 
resolve.  The  state  legislature  having,  in  December,  1788,  passed 
an  act,  allowing  a  representative  to  the  city  of  Richmond,  Mr. 
Marshall  was  almost  unanimously  invited  to  become  a  candidate. 
With  considerable  reluctance  he  yielded  to  the  public  wishes, 
being  principally  influenced  in  his  acceptance  of  the  station,  by 
the  increasing  hostility  manifested  in  the  state  against  the  national 
government,  and  his  own  anxious  desire  to  give  the  latter  his 
decided  and  public  support.  He  continued  in  the  legislature,  as  a 
representative  of  Richmond,  for  the  years  1789,  1790,  and  1791. 
During  this  period  every  important  measure  of  the  national  gov- 
ernment was  discussed  in  the  state  legislature,  with  great  freedom, 
and  no  inconsiderable  acrimony.     On  these  occasions  Mr.  Marshall 


190  BIOGRAPHICAL    SKETCHES. 

vindicated  the  national  government,  with  a  manly  and  zealous  in- 
dependence. 

Mier  the  termination  of  the  session  of  the  legislature,  in  1791, 
Mr.  Marshall  voluntarily  retired.  But  the  events,  which  soon 
afterwards  occurred  in  Europe,  and  extended  a  most  awakening 
influence  to  America,  did  not  long  permit  him  to  devote  himself  to 
professional  pursuits.  The  French  revolution,  in  its  early  dawn, 
was  hailed  with  universal  enthusiasm  in  America.  In  its  progress, 
for  a  considerable  period,  it  continued  to  maintain  among  us  an 
almost  unanimous  approbation.  Many  causes  conduced  to  this 
result.  Our  partiality  for  France,  from  a  grateful  recollection  of 
her  services  in  our  own  revolutionary  contest,  was  ardent  and  un- 
disguised. It  was  heightened  hy  the  consideration,  that  she  was 
herself  now  engaged  in  a  struggle  for  liberty,  and  was  endeavour- 
ing to  shake  off  oppressions,  under  which  she  had  been  groaning 
for  centuries.  The  monarchs  in  Europe  were  combined  in  a 
mighty  league,  for  the  suppression  of  this  new  and  alarming  insur- 
rection against  the  claims  of  legitimacy.  It  was  not  difficult  to 
foresee,  that,  if  they  were  successful  in  this  enterprise,  we  ourselves 
had  but  a  questionable  security  for  our  own  independence.  It 
would  be  natural  for  them,  after  having  completed  their  European 
conquests,  to  cast  their  eyes  to  the  origin  of  the  evil  ;  and  to  feel, 
that  their  dynasties  were  not  quite  safe,  (even  though  the  Atlantic 
rolled  between  us  and  them,)  while  a  living  example  of  liberty,  so 
seductive  and  so  striking,  remained  in  the  western  hemisphere. 

It  may  be  truly  said,  that  our  government  partook  largely  of  the 
general  interest,  and  did  not  hesitate  to  express  it  in  a  manner  not 
incompatible  with  the  strict  performance  of  the  duties  of  neutrality. 
Mr.  Marshall  was  as  warmly  attached  to  the  cause  of  France,  as 
any  of  his  considerate  countrymen. 

After  the  death  of  Louis  XVI.,  feelings  of  a  different  sort 
began  to  mix  themselves,  not  only  in  the  public  councils,  but  in 
private  life.  Those,  whose  reflections  reached  beyond  the  events 
of  the  day,  began  to  entertain  fears,  lest,  in  our  enthusiasm  for  the 
cause  of  France,  we  might  be  plunged  into  war,  and  thus  jeopard 
our  own  vital  interests.  The  task  of  preserving  neutrality  was  of 
itself  sufficiently  difficult,  when  the  mass  of  the  people  was  put  in 
motion  by  the  cheering  sounds  of  liberty  and  equality,  which  wrere 
wafted  on  every  breeze  across  the  Atlantic.  The  duty,  however, 
was  imperative  ;  and  the  administration  determined  to  perform  it 
with  the  most  guarded  good  faith. 


CHIEF   JUSTICE    MARSHALL.  191 

The  decided  part  taken  by  Mr.  Marshall  could  not  long  re- 
main unnoticed.  He  was  attacked  with  great  asperity  in  the 
newspapers  and  pamphlets  of  the  day,  and  designated,  by  way  of 
significant  reproach,  as  the  coadjutor  and  friend  of  Alexander 
Hamilton.  Against  these  attacks  he  defended  himself  with  a  zeal 
and  ability,  proportioned  to  his  own  sincere  devotion  to  the  cause, 
which  he  espoused. 

At  the  spring  election  for  the  state  legislature  in  the  year  1795, 
Mr.  Marshall  was  not  a  candidate  ;  but  he  was,  nevertheless, 
chosen  under  somewhat  peculiar  circumstances.  From  the  time 
of  his  withdrawing  from  the  legislature,  two  opposing  candidates 
had  divided  the  city  of  Richmond  ;  the  one,  his  intimate  friend, 
and  holding  the  same  political  sentiments  with  himself;  the  other, 
a  most  zealous  partisan  of  the  opposition.  Each  election  between 
these  gentlemen,  who  were  both  popular,  had  been  decided  by  a 
small  majority,  and  the  approaching  contest  was  entirely  doubtful. 
Mr.  Marshall  attended  the  polls  at  an  early  hour,  and  gave  his 
vote  for  his  friend.  While  at  the  polls,  a  gentleman  demanded, 
that  a  poll  should  be  opened  for  Mr.  Marshall.  The  latter  was 
greatly  surprised  at  the  proposal,  and  unhesitatingly  expressed  his 
dissent ;  at  the  same  time,  he  announced  his  willingness  to  become 
a  candidate  the  next  year.  He  retired  from  the  polls,  and  imme- 
diately gave  his  attendance  to  the  business  of  one  of  the  courts, 
which  was  then  in  session.  A  poll  was,  however,  opened  for  him, 
in  his  absence,  by  the  gentleman,  who  first  suggested  it,  notwith- 
standing his  positive  refusal.  The  election  was  suspended  for  a 
few  minutes ;  a  consultation  took  place  among  the  freeholders  ;  they 
determined  to  support  him  ;  and  in  the  evening  he  received  the 
information  of  his  election.  A  more  honorable  tribute  to  his 
merits  could  not  have  been  paid  ;  and  his  election  was  a  most 
important  and  timely  measure  in  favor  of  the  administration. 

It  will  be  recollected,  that  the  treaty  with  Great  Britain,  nego- 
tiated by  Mr.  Jay  in  1794,  was  the  subject  of  universal  discussion 
at  this  period.  No  sooner  was  its  ratification  advised  by  the  senate, 
than  public  meetings  were  called  in  all  our  principal  cities,  for  the 
purpose  of  inducing  the  president  to  withhold  his  ratification  ;  and 
if  this  object  were  not  attained,  then  to  prevent  in  Congress  the 
passage  of  the  appropriations,  necessary  to  carry  it  into  effect. 
The  topics  of  animadversion  were  not  confined  to  the  expediency 
of  the  treaty  in  its  principal  provisions ;  but  the  bolder  ground  was 
assumed,  that  the  negotiation  of  a  commercial  treaty  by  the  ex- 


192  BIOGRAPHICAL    SKETCHES. 

ecutive  was  nn  unconstitutional  act,  and  an  infringement  of  the 
power   uiven   to   congress   to  regulate  commerce.      Mr.    Marshall 

look  an  active  part  in  the  discussions  upon  the  treaty.  Feeling,  that 
the  ratification  of  it  was  indispensable  to  the  preservation  of  peace, 
that  its  main  provisions  were  essentially  beneficial  to  the  United 
Si  iti  s,  and  qomported  with  its  true  dignity  and  interests  ;  lie 
addressed  himself  with  the  most  diligent  attention  to  an  examina- 
tion of  the  nature  and  extent  of  all  its  provisions,  and  of  all  the 
objections  urged  against  it.  No  state  in  the  Union  exhibited  a 
more  intense  hostility  to  it  than  Virginia,  upon  the  points  both  of 
expediency  and  constitutionality  ;  and  in  no  state  were  the  objec- 
tions urged  with  more  impassioned  and  unsparing  earnestness. 
The  task,  therefore,  of  meeting  and  overthrowing  them  was  of  no 
ordinary  magnitude,  and  required  all  the  resources  of  the  ablest 
mind.  Mr.  Marshall  came  to  the  task  with  a  thorough  mastery 
of  every  topic  connected  with  it.  At  a  public  meeting  of  the 
citizens  ol"  Richmond,  he  carried  a  series  of  resolutions,  approving 
the  conduct  of  the  executive. 

But  a  more  difficult  and  delicate  duty  remained  to  be  performed. 
It  was  easy  to  foresee,  that  the  controversy  would  soon  find  its  way 
from  the  public  forum  into  the  legislative  bodies  ;  and  would  be 
there  renewed  with  the  bitter  animosity  of  party  spirit.  Indeed,  so 
unpopular  was  the  treaty  in  Virginia,  that  Mr.  Mar-hall's  friends 
were  exceedingly  solicitous,  that  he  should  avoid  engaging  in  any 
debate  in  the  legislature  on  the  subject,  as  it  would  be  a  sacrifice  of 
the  remains  of  his  well  deserved  popularity  ;  and  it  might  be  even 
questioned,  if  he  could  there  deliver  his  sentiments,  without  expo- 
sure to  some  rude  attacks.  His  answer  to  all  such  suggestions  was 
uniform  ;  that  he  should  not  move  any  measure  to  excite  a  debate; 
but,  if  the  subject  were  brought  forward  by  others,  he  should,  at 
every  hazard,  vindicate  the  administration,  and  assert  his  own  opin- 
ions. He  was  incapable  of  shrinking  from  a  just  expression  of  his 
own  independence.  The  subject  was  soon  introduced  by  his 
political  opponents,  and  the  constitutional  objections  were  urged 
with  triumphant  confidence.  That,  particularly,  which  denied  the 
constitutional  right  of  the  executive  to  conclude  a  commercial 
treaty,  was  selected  and  insisted  on  as  a  favorite  and  unanswerable 
position.  The  speech  of  Mr.  Marshall  on  this  occasion  has 
been  always  represented  as  one  of  the  noblest  efforts  of  his  genius. 
His  vast  powers  of  reasoning  were  employed  with  the  most  grati- 
fying success.     He  demonstrated,  not  only  from   the  words  of  the 


CHIEF    JUSTICE    MARSHALL.  193 

constitution,  and  the  universal  practice  of  nations,  that  a  commer- 
cial treaty  was  within  the  constitutional  powers  of  the  executive ; 
but  that  this  opinion  had  been  maintained  and  sanctioned  by  Mr. 
Jefferson,  by  the  whole  delegation  of  Virginia  in  Congress,  and  by 
the  leading  members  in  the  convention  on  both  sides.  His  argu- 
ment was  decisive  ;  the  constitutional  ground  was  abandoned  ;  and 
the  resolutions  of  the  assembly  were  confined  to  a  simple  disappro- 
bation of  the  treaty  in  point  of  expediency. 

The  constitutional  objections  were  again  urged  in  Congress,  in 
the  celebrated  debate  on  the  British  treaty,  in  the  spring  of  1796 ; 
and  there  finally  assumed  the  mitigated  shape  of  a  right  claimed  on 
the  part  of  Congress,  to  grant  or  withhold  appropriations  to  carry 
treaties  into  effect.  The  higher  ground,  that  commercial  treaties 
were  not,  when  ratified,  the  supreme  law  of  the  land,  was  aban- 
doned ;  and  the  subsequent  practice  of  the  government  has, 
without  question,  under  every  administration,  conformed  to  the 
construction  vindicated  by  Mr.  Marshall.  The  fame  of  this 
admirable  argument  spread  throughout  the  Union.  Even  with  his 
political  enemies,  it  enhanced  the  elevation  of  his  character ;  and 
it  brought  him  at  once  to  the  notice  of  some  of  the  most  eminent 
statesmen,  who  then  graced  our  public  councils. 

After  this  period,  President  Washington  invited  Mr.  Marshall 
to  accept  the  office  of  attorney  general ;  but  he  declined  it,  upon 
the  ground  of  its  interference  with  his  lucrative  practice  in  Vir- 
ginia. He  continued  in  the  state  legislature  ;  but  did  not,  from  his 
other  engagements,  take  an  active  part  in  the  ordinary  business. 
He  confined  his  attention  principally  to  those  questions,  which  in- 
volved the  main  interests  of  the  country,  and  brought  into  discus- 
sion the  policy  and  the  principles  of  the  national  parties. 

Upon  the  recall  of  Mr.  Monroe,  as  minister  to  France, 
President  Washington  solicited  Mr.  Marshall  to  accept  the  ap- 
pointment as  his  successor  ;  but  he  respectfully  declined  it  ;  and 
General  Pinckney,  of  South  Carolina,  was  appointed  in  his  stead. 

Mr.  Marshall  was  not,  however,  long  permitted  to  act  upon  his 
own  judgment  and  choice.  The  French  government  refused  to 
receive  General  Pinckney,  as  minister  from  the  United  States  ; 
and  the  Administration,  being  sincerely  anxious  to  exhaust  every 
measure  of  conciliation,  not  incompatib'e  with  national  dignity,  for 
the  preservation  of  peace,  resorted  to  the  extraordinary  measure  of 
sending  a  commission  of  three  envoys.  Within  a  year  from  the 
time  of  the  first  offer,  Mr.  Adams,  having  succeeded  to  the  presi- 
25 


194  BIOGRAPHICAL    SKETCHES. 

dency.  appointed  Mr.  Marshall  one  of  these  envoys,  in  conjunction 
with  General  Pinckney  and  Mr.  Gerry. 

After  some  hesitation,  Mr.  .Marshall  accepted  the  appointment, 
and  soon  afterwards  emharked  for  Amsterdam.  On  his  arrival  at 
the  Hague,  he  met  General  Pinckney  ;  and,  having  received  pass- 
ports, they  proceeded  to  Paris.  The  mission  was  unsuccessful  ;  the 
envoys  were  never  accredited  by  the  French  government,  and 
Mr.  Marshall  returned  to  America  in  the  summer  of  1798.  Upon 
him  principally  devolved  the  duty  of  preparing  the  official  despatch- 
es. They  have  been  universally  attributed  to  his  pen  ;  and  are 
models  of  skilful  reasoning,  forcible  illustration,  accurate  detail,  and 
urbane  and  dignified  moderation.  In  the  annals  of  our  diplomacy, 
there  are  no  papers,  upon  which  an  American  can  look  back  with 
more  unmixed  pride  and  pleasure. 

Mr.  Marshall,  on  his  return  home,  found,  that  he  had  sustained 
no  loss  by  a  diminution  of  professional  business,  and  looked  forward 
to  a  resumption  of  his  labors  with  high  hopes.  He  peremptorily 
refused,  for  a  considerable  time,  to  become  a  candidate  for  Congress, 
and  avowed  his  determination  to  remain  at  the  bar.  At  this  junc- 
ture, he  was  invited  by  General  Washington  to  pass  a  few  days  at 
Mount  Vernon;  and  having  accepted  the  invitation,  he  went  there 
in  company  with  Mr.  Bushrod  Washington,  the  nephew  of  General 
Washington,  and  afterwards  a  highly  distinguished  judge  of  the 
Supreme  Court  of  the  United  States,  whose  death  the  public  have 
recently  had  occasion  to  lament. 

What  took  place  upon  that  occasion  we  happen  to  have  the 
good  fortune  to  know  from  an  authentic  source.  General  Wash- 
ington did  not  for  a  moment  disguise  the  object  of  his  invitation  ;  it 
was,  to  urge  upon  Mr.  Marshall  and  Mr.  Washington  the  propriety 
of  their  becoming  candidates  for  Congress.  Mr.  Washington  yield- 
ed to  the  wishes  of  his  uncle  without  a  struggle.  But  Mr.  Marshall 
■  !,  on  the  ground  of  his  situation,  and  the  necessity  of  attend- 
ing to  his  private  affairs.  The  reply  of  General  Washington  to 
these  suggestions  will  never  be  forgotten  by  those,  who  heard  it. 
It  breathed  the  spirit  of  the  loftiest  virtue  and  patriotism.  He  said, 
that  there  were  crises  in  national  affairs,  which  made  it  the  duty  of  a 
citizen  to  forego  his  private  for  the  public  interest.  He  considered 
the  country  to  be  then  in  one  of  these.  He  detailed  his  opinions 
freely  on  the  nature  of  the  controversy  with  France,  and  expressed 
his  conviction,  that  the  best  interests  of  America  depended  upon 
the  character  of  the  ensuing  Congress.    The  conversation  was  long, 


CHIEF    JUSTICE    MARSHALL.  195 

animated,  and  impressive  ;  full  of  the  deepest  interest,  and  the 
most  unreserved  confidence.  The  exhortation  of  General  Wash- 
ington had  its  effect.  Mr.  Marshall  yielded  to  his  representations, 
and  became  a  candidate ;  and  was,  after  an  ardent  contest,  elected, 
and  took  his  seat  in  Congress  in  December,  1799.  While  he  was 
yet  a  candidate,  he  was  offered  a  seat  on  the  bench  of  the 
Supreme  Court,  then  vacant  by  the  death  of  Mr.  Justice  Iredell. 
Upon  his  declining  it,  President  Adams  appointed  Mr.  Justice 
Washington,  who  was  thus  prevented  from  becoming  a  member  of 
Congress. 

The  session  of  Congress,  in  the  winter  of  1799-1800,  will  for 
ever  be  memorable  in  the  annals  of  America.  Men  of  the  high- 
est talents  and  most  commanding  influence  in  the  Union  were  there 
assembled,  and  arrayed,  with  all  the  hostility  of  party  spirit,  and 
all  the  zeal  of  conscious  responsibility,  against  each  other.  Every 
important  measure  of  the  Administration  was  subjected  to  the 
most  scrutinizing  criticism  ;  and  was  vindicated  with  a  warmth 
proportionate  to  the  ability  of  the  attack.  Mr.  Marshall  took  an 
active  part  in  the  debates,  and  distinguished  himself  in  a  manner, 
which  will  not  easily  be  forgotten. 

In  May,  1800,  Mr.  Marshall  was,  without  the  slightest  personal 
communication,  nominated  by  the  President  to  the  office  of  secre- 
tary of  war,  upon  the  dismissal  of  Mr.  M'Henry.  We  believe, 
that  the  first  information  received  of  it  by  Mr.  Marshall  was  at  the 
department  itself,  where  he  went  to  transact  some  business  previously 
to  his  return  to  Virginia.  He  immediately  wrote  a  letter,  request- 
ing the  nomination  to  be  withdrawn  by  the  President.  It  was 
not ;  and  his  appointment  was  confirmed  by  the  senate.  The 
rupture  between  the  President  and  Colonel  Pickering,  who  was 
then  secretary  of  state,  soon  afterwards  occurred,  and  Mr.  Marshall 
was  appointed  his  successor.  This  was,  indeed,  an  appointment 
in  every  view  most  honorable  to  his  merits,  and  for  which  he  was 
in  the  highest  degree  qualified. 

On  the  31st  day  of  January,  1801,  he  became  chief  justice  of 
the  United  States;  and  has  continued,  ever  since  that  period,  to  fill 
the  office  with  increasing  reputation  and  unsullied  dignity. 

Splendid,  indeed,  as  has  been  the  judicial  career  of  this  eminent 
man,  it  is  scarcely  possible,  that  the  extent  of  his  labors,  the  vigor 
of  his  intellect,  or  the  untiring  accuracy  of  his  learning,  should  be 
duly  estimated,  except  by  the  profession,  of  which  he  is  so  great 
an  ornament.     Questions  of  law  rarely  assume  a  cast,  which  intro- 


196  BIOGRAPHICAL    SKETCHES. 

duces  them  to  extensive,  public  notice  ;  and  those,  which  require  the 
highest  faculties  of  mind  to  master  and  expound  them,  are  commonly 
so  intricate,  and  remote  from  the  ordinary  pursuits  of  life,  that  the 
generality  of  readers  do  not  bring  to  the  examination  of  them  the 
knowledge,  necessary  to  comprehend  them,  or  the  curiosity,  which 
imparts  a  relish  and  flavor  to  them.  For  the  most  part,  therefore, 
the  reputation  of  judges  is  confined  to  the  narrow  limits,  which 
embrace  the  votaries  of  jurisprudence  ;  and  many  of  those  exqui- 
site judgments,  which  have  cost  days  and  nights  of  the  most  elabo- 
rate study,  and,  for  power  of  thought,  beauty  of  illustration,  variety 
of  learning,  and  elegant  demonstration,  are  justly  numbered  among 
the  highest  reaches  of  the  human  mind,  find  no  admiration  beyond 
the  ranks  of  lawyers,  and  live  only  in  the  dusty  repositories  of 
their  oracles.  The  fame  of  the  warrior  is  for  ever  embodied  in 
the  history  of  his  country,  and  is  colored  with  the  warm  lights, 
reflected  back  by  the  praise  of  many  a  distant  age.  The  orator 
and  the  statesman  live,  not  merely  in  the  recollections  of  their 
powerful  eloquence,  or  the  deep  impressions  made  by  them  on  the 
character  of  the  generation,  in  which  they  lived  ;  but  are  brought 
forth  for  public  approbation  in  political  debates,  in  splendid  vol- 
umes, in  collegiate  declamations,  in  the  works  of  rhetoricians,  in 
the  school-books  of  boys,  and  in  the  elegant  extracts  of  maturer  life. 

This  is  not  the  place  to  enter  upon  a  minute  survey  of  the  offi- 
cial labors  of  Mr.  Chief  Justice  Marshall.  However  instructive  or 
interesting  such  a  course  might  be  to  the  profession,  the  considera- 
tions, already  adverted  to,  sufficiently  admonish  us,  that  it  would  not 
be  very  welcome  to  the  mass  of  other  readers.  But  there  is  one 
class  of  cases,  which  ought  not  to  be  overlooked,  because  it  comes 
home  to  the  business  and  bosom  of  every  citizen  of  this  country, 
and  is  felt  in  every  gradation  of  life,  from  the  chief  magistrate 
down  to  the  inmate  of  the  cottage.  We  allude  to  the  orave  dis- 
cussions  of  constitutional  law,  which,  during  his  time,  have  attracted 
so  much  of  the  talents  of  the  bar  in  the  Supreme  Court,  and 
sometimes  agitated  the  whole  nation.  If  all  others  of  the  Chief 
Justice's  juridical  arguments  had  perished,  his  luminous  judgments, 
on  these  occasions,  would  have  given  an  enviable  immortality  to  his 
name. 

There  is,  in  the  discharge  of  this  delicate  and  important  duty, 
which  is  peculiar  to  our  institutions,  a  moral  grandeur  and  interest, 
which  it  is  not  easy  to  overestimate,  cither  in  a  political  or  civil 
view.     In  no  other  country  on  earth  are  the  acts  of  the  legislature 


CHIEF    JUSTICE    MARSHALL.  197 

liable  to  be  called  in  question,  and  even  set  aside,  if  they  do  not 
conform  to  the  standard  of  the  constitution.  Even  in  England, 
where  the  principles  of  civil  liberty  are  cherished  with  uncommon 
ardor,  and  private  justice  is  administered  with  a  pure  and  elevated 
independence,  the  Acts  of  Parliament  are,  by  the  very  theory  of 
the  government,  in  a  legal  sense,  omnipotent.  They  cannot  be 
gainsaid  or  overruled.  They  form  the  law  of  the  land,  which 
controls  the  prerogative,  and  even  the  descent,  of  the  Crown  itself, 
and  may  take  away  the  life  and  property  of  the  subject,  without 
trial  and  without  appeal.  The  only  security  is  in  the  moderation 
of  Parliament  itself,  and  representative  responsibility.  The  case  is 
far  otherwise  in  America.  The  state  and  national  constitutions 
form  the  supreme  law  of  the  land  ;  and  the  judges  are  sworn  to 
maintain  these  charters  of  liberty,  or  rather  these  special  delega- 
tions of  power  by  the  people,  (who,  in  our  governments,  are  alone 
the  depositaries  of  supreme  authority  and  sovereignty,)  in  their 
original  vigor  and  true  intendment.  It  matters  not,  how  popular  a 
statute  may  be,  or  how  commanding  the  majority,  by  which  it  has 
been  enacted  ;  it  must  stand  the  test  of  the  constitution,  or  it  falls. 
The  humblest  citizen  may  question  its  constitutionality  ;  and  its 
final  fate  must  be  settled  upon  grave  argument  and  debate  by  the 
judges  of  the  land. 

Nor  is  this  the  mere  theory  of  the  constitution.  Jt  is  a  func- 
tion, which  has  been  often  performed  ;  and  not  a  few  acts  of  state, 
as  well  as  of  national  legislation,  have  been  brought  to  this  severe 
scrutiny  ;  and,  after  the  fullest  consideration,  some  have  been  pro- 
nounced to  be  void,  because  they  were  unconstitutional.  And 
these  judgments  have  been  acquiesced  in,  and  obeyed,  even  when 
they  were  highly  offensive  to  the  pride  and  sovereignty  of  the 
state  itself,  or  affected  private  and  public  interests  to  an  incalculable 
extent.  Such,  in  America,  is  the  majesty  of  the  law.  Such  is 
the  homage  of  a  free  people  to  the  institutions  created  by  them- 
selves. 

This  topic  is  so  copious,  and  of  such  everlasting  consequence  to 
the  wellbeing  of  this  republic,  that  it  furnishes  matter  for  volumes; 
but  we  must  escape  from  it  with  the  brief  hints  already  suggested, 
and  resume  our  previous  subject. 

It  is  impossible  even  to  look  forward  to  the  period,  when,  ac- 
cording to  the  course  of  human  events,  the  grave  must  close  upon 
the  labors  of  this  great  man,  without  a  profound  melancholy.  Such 
men,  as  he,  are  not  the  ornaments  of  every  and  any  age  ;  they  arise 
only  at  distant  intervals,  to  enlighten  and  elevate  the  human  race. 


198  BIOGRAPHICAL    SKETCHES. 

They  are  beings  of  a  superior  order,  belonging  only  to  centuries,  and 
designed  by  the  beneficence  of  Providence  to  work  deeply  and  pow- 
erfully upon  human  affairs.  As  the  American  nation  advances  in  its 
general  population  and  wealth,  the  constitution  is  arriving  at  more 
and  more  critical  periods  of  the  trial  of  its  principles.  The  warmest 
patriots  begin  to  hesitate  in  their  conlidenee,  whether  a  system  of 
government  so  free,  and  so  beneficent,  so  just  to  popular  rights,  and 
so  true  toward  national  interests,  can  and  will  be  enduring.  The 
boldest  and  most  sanguine  admirers  of  republics  are  pausing,  as 
upon  the  eve  of  new  events,  and  new  inquiries.  They  perceive, 
that  it  is  more  than  possible,  that  prosperity  may  corrupt  or  enervate 
us,  as  it  has  done  all  former  republics  :  that  there  are  elements 
of  change  and  perturbations,  which  have  not  hitherto  been  subjected 
to  rigid  calculation,  which  may  endanger,  nay,  which  may  perhaps 
overthrow,  the  system  of  movements,  so  beautifully  put  together, 
and  bring  on  a  common  ruin,  as  fearful  and  as  desolating,  as  any 
which  the  old  world  has  exhibited.  In  the  contemplation  of  such 
a  state  of  things,  who  would  not  lament  the  extinction  of  such  a 
mind,  as  that  of  the  Chief  Justice  ?  Who  would  not  earnestly 
implore  the  continuance  of  that  influence,  which  has  hitherto, 
through  all  the  mutations  of  parly,  borne  him  along  with  the  public 
favor,  as,  at  once,  the  wisest  of  guides,  and  the  truest  of  friends  ? 
When  can  we  expect  to  be  permitted  to  behold  again  so  much 
moderation  united  with  so  much  firmness,  so  much  sagacity  with  so 
much  modesty,  so  much  learning  with  so  much  experience,  so  much 
solid  wisdom  with  so  much  purity,  so  much  of  every  thing,  to  love 
and  admire,  with  nothing,  absolutely  nothing,  to  regret?  What, 
indeed,  strikes  us,  as  the  most  remarkable  in  his  whole  character, 
even  more  than  his  splendid  talents,  is  the  entire  consistency  of  his 
public  life  and  principles.  There  is  nothing  in  either,  which  calls 
for  apology  or  concealment.  Ambition  has  never  seduced  him  from 
his  principles,  nor  popular  clamor  deterred  him  from  the  strict  per- 
formance of  duty.  Amid  the  extravagances  of  party  spirit,  he  has 
stood  with  a  calm  and  steady  inflexibility  ;  neither  bending  to  the 
pressure  of  adversity,  nor  bounding  with  the  elasticity  of  success. 
He  has  lived,  as  such  a  man  should  live,  (and  yet,  how  few  deserve 
the  commendation!)  by  and  with  his  principles.  Whatever  changes 
of  opinion  have  occurred,  in  the  course  of  his  long  life,  have  been 
gradual  and  slow ;  the  results  of  genius  acting  upon  larger  materials, 
and  of  judgment  matured  by  the  lessons  of  experience.  If  we 
were  tempted  to  say,  in  one  word,  what  it  was.  in  which  he  chiefly 
excelled  other  men,  we  should  say,  in  wisdom  ;  in  the  union  of  that 


CHIEF    JUSTICE    MARSHALL.  199 

virtue,  which  has  ripened  under  the  hardy  discipline  of  principles, 
with  that  knowledge,  which  has  constantly  sifted  and  refined  its  old 
treasures,  and  as  constantly  gathered  new.  The  constitution,  since 
its  adoption,  owes  more  to  him  than  to  any  other  single  mind,  for 
its  true  interpretation  and  vindication.  Whether  it  lives  or  perishes, 
his  exposition  of  its  principles  will  he  an  enduring  monument  to  his 
fame,  as  long  as  solid  reasoning,  profound  analysis,  and  soher  views 
of  government,  shall  invite  the  leisure,  or  command  the  attention 
of  statesmen  and  jurists. 

But,  interesting  as  it  is.  to  contemplate  such  a  man  in  his  public 
character  and  official  functions,  there  are  those,  who  dwell  with  far 
more  delight  upon  his  private  and  domestic  qualities.  There  are  few 
great  men,  to  whom  one  is  brought  near,  however  dazzling  may  be 
their  talents  or  actions,  who  are  not  thereby  painfully  diminished  in 
the  estimate  of  those,  who  approach  them.  The  mist  of  distance 
sometimes  gives  a  looming  size  to  their  character  ;  but  more  often 
conceals  its  defects.  To  be  amiable,  as  well  as  great ;  to  be  kind, 
gentle,  simple,  modest,  and  social,  and  at  the  same  time  to  possess 
the  rarest  endowments  of  mind,  and  the  warmest  affections  ;  is  a 
union  of  qualities,  which  the  fancy  may  fondly  portray,  but  the  sober 
realities  of  life  rarely  establish.  Yet  it  may  be  affirmed  by  those, 
who  have  had  the  privilege  of  intimacy  with  Mr.  Chief  Justice 
Marshall,  that  he  rises,  rather  than  falls,  with  the  nearest  surveys  ; 
and  that  in  the  domestic  circle  he  is  exactly  what  a  wife,  a  child, 
a  brother,  and  a  friend  would  most  desire.  In  that  magical  circle, 
admiration  of  his  talents  is  forgotten,  in  the  indulgence  of  those 
affections  and  sensibilities,  which  are  awakened  only  to  be  gratified. 
More  might  be  said  with  truth,  if  we  were  not  admonished,  that  he 
is  yet  living,  and  his  delicacy  might  be  wounded  by  any  attempt  to 
fill  up  the  outline  of  his  more  private  life. 

Besides  his  judicial  labors,  the  Chief  Justice  has  contributed  a 
valuable  addition  to  the  historical  and  biographical  literature  of  the 
country.  He  is  the  author  of  the  Life  of  Washington,  and  of  the 
History  of  the  American  Colonies,  originally  prefixed  to  the  former 
work  ;  but,  in  the  second  edition,  with  great  propriety,  detached  from 
it.  Each  of  these  works  has  been  so  long  and  so  favorably  known  to 
the  public,  that  it  is  wholly  unnecessary  to  enter  upon  a  critical  ex- 
amination of  them  in  this  place.  They  have  all  the  leading  features, 
which  ought  to  distinguish  historical  compositions  ;  fidelity,  accu- 
racy, impartiality,  dignity  of  narrative,  and  simplicity  and  purity 
of  style.     The  Life  of  Washington   is,  indeed,  entitled  to  a  very 


200  BIOGRAPHICAL    SKETCHES. 

high  rank  ;  as  it  was  prepared  from  a  diligent  perusal  of  the  original 
papers  of  thai  great  man,  which  were  submitted  to  the  liberal 
use  of  his  biographer.  Probably  no  person  could  have  brought  to 
so  difficult  a  task  more  various  and  apt  qualifications.  The  Chief 
Justice  had  served  through  a  great  part  of  the  revolutionary  war, 
and  was  familiar  with  most  of  the  scenes  of  Washington's  exploits, 
lie  had  also  long  enjoyed  his  personal  confidence,  and  felt  the 
strongest  admiration  of  his  talents  and  virtues.  He  was  also  an  early 
actor  in  the  great  political  controversies,  which,  after  the  revolu- 
tionary war,  agitated  the  whole  country,  and  ended  in  the  establish- 
ment of  the  national  constitution,  lie  was  a  decided  supporter  of 
the  administration  of  Washington,  and  a  leader  among  his  able  advo- 
cates. The  principles  and  the  measures  of  that  administration  had 
his  unqualified  approbation  :  and  he  has,  at  all  times  since,  main- 
tained them  in  his  public  life,  with  a  sobriety  and  uniformity,  which 
mark  him  out,  as  the  fittest  example  of  the  excellence  of  that  school 
of  patriots  and  statesmen.  If  to  these  circumstances  are  added  his 
own  peculiar  cast  of  mind,  his  dee})  sagacity,  his  laborious  diligence, 
his  native  candor,  and  lofty  sense  of  duty,  it  could  scarcely  be 
doubted,  that  his  Life  of  Washington  would  be  invaluable,  for  the 
truth  of  its  facts,  and  the  accuracy  and  completeness  of  its  narrative. 
And  such  has  hitherto  been,  and  such  ought  for  ever  to  continue 
to  be,  its  reputation.  It  does  not  affect  to  deal  with  mere  private 
and  personal  anecdotes,  to  amuse  the  idle,  or  the  curious.  Its  object 
is,  to  expound  the  character  and  public  services  of  Washington,  and 
to  give  a  faithful  outline  of  his  principles  and  measures.  To  a 
statesman,  in  an  especial  manner,  the  concluding  volume  is  of  the 
highest  importance.  He  may  there  find  traced  out,  with  a  masterly 
hand,  and  with  a  sedulous  impartiality,  the  origin  and  progress  of 
the  parties,  which,  since  the  adoption  of  the  constitution,  have 
divided  the  United  States.  He  will  there  be  enabled  to  treasure  up 
the  fundamentals  of  constitutional  law  ;  and  to  purify  himself  from 
those  generalities,  which  are  so  apt  to  render  politics,  as  a  science, 
impracticable,  and  government,  as  a  system,  unsteady  and  visionary. 
Every  departure  from  the  ureal  principles  and  policy,  laid  down  by 
Washington,  will  be  found  to  weaken  the  bonds  of  union,  to  jeopard 
the  interests,  and  to  shake  the  solid  foundations  of  the  liberties  of 
the  republic* 

*  While  this  was  passing  through  the  press,  Mr.  Chief  Justice  Marshal]  died 
at  Philadelphia,  on  the  sixth  day  of  July,  1835. 


SKETCH 


OF  THE  CHARACTER  OF  THE  HON.  ROBERT  TRIMBLE,  ASSOCIATE  JUSTICE 
OF  THE  SUPREME  COURT  OF  THE  UNITED  STATES. 


[First  published  in  the  Boston  Columbian  Centinel,  September  17,  1828.] 

The  melancholy  rumor  of  the  death  of  Mr.  Justice  Trimble,  of 
the  Supreme  Court  of  the  United  States,  has  at  length  been  con- 
firmed. That  excellent  man  is  no  more.  The  nation  has  sus- 
tained a  loss  of  no  ordinary  magnitude ;  and  Kentucky  may  now 
mourn  over  the  departure  of  another  of  her  brightest  ornaments, 
in  the  vigor  of  life  and  usefulness.  It  is  but  a  few  years  since, 
that  Hardin,  who  deservedly  held  the  foremost  rank  at  her  bar,  fell 
an  early  victim  to  disease.  The  death  of  that  worthy  and  dis- 
criminating judge,  Mr.  Justice  Todd,  soon  followed  ;  and  now 
Trimble  is  added,  to  complete  the  sad  Triumvirate.  It  is  but  two 
years  since  the  latter  took  his  seat  on  the  bench  of  the  Supreme 
Court,  having  been  elevated  to  that  station,  from  the  District  Court, 
solely  by  his  uncommon  merits.  It  is  not  saying  too  much  to 
assert,  that  he  brought  with  him  to  his  new  office  the  reputation  of 
being  at  the  head  of  the  profession  in  his  native  state.  Men  might 
differ  with  respect  to  the  rank  of  other  lawyers  ;  but  all  admitted, 
that  no  one  was  superior  to  Trimble,  in  talents,  in  learning,  in  acute- 
ness,  in  sagacity.  All  admired  him  for  his  integrity,  firmness, 
public  spirit,  and  unconquerable  industry.  All  saw  in  him  a 
patience  of  investigation,  which  never  failed,  a  loftiness  of  principle, 
which  knew  no  compromise,  a  glorious  love  of  justice  and  the  law, 
which  overcame  all  obstacles.  His  judgments  were  remarkable 
for  clearness,  strength,  vigor  of  reasoning,  and  exactness  of  conclu- 
sion. Without  being  eloquent  in  manner,  they  had  the  full  effect 
of  the  best  eloquence.  They  were  persuasive,  and  often  over- 
whelming, in  their  influence. 
26 


202  BIOGRAPHICAL    SKETCHES. 

Such  was  ihc  reputation,  which  accompanied  him  to  the  Su- 
preme Court.  Before  such  a  bar,  as  adorns  that  court,  where  some 
of  the  ablest  men  in  the  Union  are  constantly  found  engaged  in 
arguments,  it  is  difficult  for  any  man  long  to  sustain  a  professional 
character  of  distinction,  unless  he  has  solid  acquirements  and  talents 
to  sustain  it.  There  is  little  chance  there  for  superficial  learning,  or 
false  pretensions,  to  escape  undetected.  Neither  office,  nor  influ- 
ence, nor  manners,  can  there  sustain  the  judicial  functions,  unless 
there  is  a  real  power  to  comprehend  and  illustrate  juridical  argu- 
ments, a  deep  sense  of  the  value  of  authority,  an  untiring  zeal,  and 
an  ability  to  expound,  with  living  reasons,  the  judgments,  which  the 
court  is  called  upon  to  express.  A  new  judge,  coming  there  for 
the  first  time,  may,  under  such  circumstances,  well  feel  some  painful 
anxiety,  and  some  distrustful  doubts,  lest  the  bar  should  search  out 
and  weigh  his  attainments,  with  too  nice  an  inquisition.  Mr.  Justice 
Trimble  not  only  sustained  his  former  reputation,  but  rose  rapidly 
in  public  favor.  Perhaps  no  man  ever  on  the  bench  gained  so 
much,  in  so  short  a  period  of  his  judicial  career,  lie  was  already 
looked  up  to,  as  among  the  first  judges  in  the  nation,  in  all  the 
qualifications  of  office.  Unless  we  are  greatly  misinformed,  he 
possessed  in  an  eminent  degree  the  confidence  of  his  brethren,  and 
was  listened  to  with  a  constantly  increasing  respect.  And  well  did 
he  deserve  it ;  for  no  man  could  bestow  more  thought,  more  cau- 
tion, more  candor,  or  more  research  upon  any  legal  investigations, 
than  he  did.  The  judgments,  pronounced  by  him  in  the  Supreme 
Court,  cannot  be  read  without  impressing  every  professional  reader 
with  the  strength  of  his  mind,  and  his  various  resources  to  illustrate 
and  unravel  intricate  subjects.  Yet  we  are  persuaded,  that,  if  he 
had  lived  ten  years  longer,  in  the  discharge  of  the  same  high  duties, 
from  the  expansibility  of  his  talents,  and  his  steady  devotion  to  juris- 
prudence, he  would  have  gained  a  still  higher  rank ;  perhaps  as 
high,  as  any  of  his  most  ardent  friends  could  have  desired.  One 
might  say  of  him,  as  Cicero  said  of  Lysias, — "  Nihil  acute  inveniri 
potuit  in  eis  causis,  quas  scripsit,  nihil  (ut  ita  dicam)  subdole,  nihil 
versute,  quod  ille  non  viderit ;  nihil  subtilitcr  dici,  nihil  presse,  nihil 
enucleate,  quo  fieri  possit  aliquid  limatius." 

In  private  life  he  was  amiable,  courteous,  frank,  and  hospita- 
ble ;  warm  in  his  friendships,  and  a  model  in  his  domestic  relations. 

In  politics,  he  was  a  firm  and  undeviating  republican;  but 
respectful  and  conciliatory  to  those,  who  differed  from  him.  In 
constitutional  law  he  belonged  to  that  school,  of  which  Mr.  Chief 


HON.    ROBERT    TRIMBLE.  203 

Justice  Marshal]  (himself  a  host)  is  the  acknowledged  head  and 
expositor.  He  loved  the  Union  with  an  unfaltering  love,  and  was 
ready  to  make  any  sacrifice  to  ensure  its  perpetuity.  He  was  a 
patriot  in  the  purest  sense.  He  was  ;  — but  how  vain  is  it  to  say 
what  he  was  !  —  He  has  gone  from  us  for  ever.  We  have  nothing 
left,  but  to  lament  his  loss,  and  to  cherish  his  fame. 

"  Salve  sternum  mihi,  maxime  Palla, 
iEternumque  vale." 


SKETCH 


OF    THE    CHARACTER    OF    THE    HON.     BUSHROD    WASHINGTON,    ASSOCIATE 
JUSTICE  OF  THE  SUPREME  COURT  OF  THE   UNITED  STATES. 


[First  published  in  the  Boston  Daily  Advertiser,  1829.] 

The  death  of  Mr.  Justice  Washington  is  an  event,  which  cannot 
but  cast  a  gloom  upon  all  the  real  friends  of  our  country.  He 
was  born  on  the  5th  of  June,  1762,  and  was,  of  course,  now  in  the 
sixty-eighth  year  of  his  age.  It  is  well  known,  that  he  was  the 
nephew,  and,  we  have  a  right  to  say,  the  favorite  nephew  of  Pres- 
ident Washington.  The  latter  bequeathed  to  him,  by  his  will,  his 
celebrated  estate  on  the  Potomac,  Mount  Vernon,  which  was  the 
residence  of  this  great  patriot  during  the  most  brilliant  periods  of 
his  life,  the  delightful  retreat  of  his  old  age,  the  scene  of  his  dying 
hours,  and  the  spot,  where,  by  his  own  order,  his  ashes  now  repose 
in  the  same  tomb  with  his  ancestors.  To  him,  also,  President 
Washington  gave  all  his  valuable  public  and  private  papers,  as  a 
proof  of  his  entire  confidence  and  attachment,  and  made  him  the 
active  executor  of  his  will.  Such  marks  of  respect  from  such  a 
man.  —  the  wonder  of  his  own  age,  and  the  model  for  all  future 
ages,  —  would  alone  stamp  a  character  of  high  merit,  and  solid 
distinction,  upon  any  person.  They  would  constitute  a  passport 
to  public  favor,  and  confer  an  enviable  rank,  far  beyond  the  records 
of  the  herald's  office,  or  the  fugitive  honors  of  a  title. 

It  is  high  praise  to  say,  that  Mr.  Justice  Washington  well  de- 
served  such  confidence  and  distinction.  Nay,  more.  His  merits 
went  far  beyond  them.  He  was  as  worthy  an  heir,  as  ever  claimed 
kindred  with  a  worthy  ancestor.  He  was  bred  to  the  law  in  his 
native  state  of  Virginia,  and  arrived  at  such  early  eminence  in 
his  profession,  that,  as  long  ago  as  1798,  he  was  selected  by  Pres- 


HON.    BUSHROD    WASHINGTON.  205 

ident  Adams,  as  a  Justice  of  the  Supreme  Court,  upon  the  decease 
of  the  late  Judge  Wilson,  of  Pennsylvania.  For  thirty-one  years 
he  held  that  important  station,  with  a  constantly  increasing 
reputation  and  usefulness.  Few  men,  indeed,  have  possessed 
higher  qualifications  for  the  office,  either  natural  or  acquired. 
Few  men  have  left  deeper  traces,  in  their  judicial  career,  of  every 
thing,  which  a  conscientious  judge  ought  to  propose  for  his  am- 
bition, or  his  virtue,  or  his  glory.  His  mind  was  solid,  rather  than 
brilliant ;  sagacious  and  searching,  rather  than  quick  or  eager ; 
slow,  but  not  torpid  ;  steady,  but  not  unyielding  ;  comprehensive, 
and  at  the  same  time  cautious  ;  patient  in  inquiry,  forcible  in 
conception,  clear  in  reasoning.  He  was,  by  original  temperament, 
mild,  conciliating,  and  candid  ;  and  yet  he  was  remarkable  for  an 
uncompromising  firmness.  Of  him  it  may  be  truly  said,  that 
the  fear  of  man  never  fell  upon  him  ;  it  never  entered  into  his 
thoughts,  much  less  was  it  seen  in  his  actions.  In  him  the  love 
of  justice  was  the  ruling  passion  ;  it  was  the  master-spring  of 
all  his  conduct.  He  made  it  a  matter  of  conscience  to  dis- 
charge every  duty  with  scrupulous  fidelity  and  scrupulous  zeal. 
It  mattered  not,  whether  the  duty  were  small  or  great,  witnessed 
by  the  world,  or  performed  in  private,  every  where  the  same 
diligence,  watchfulness,  and  pervading  sense  of  justice  were  seen. 
There  was  about  him  a  tenderness  of  giving  offence,  and  yet  a 
fearlessness  of  consequences,  in  his  official  character,  which  I  scarce- 
ly know  how  to  portray.  It  was  a  rare  combination,  which  added 
much  to  the  dignity  of  the  bench,  and  made  justice  itself,  even 
when  most  severe,  soften  into  the  moderation  of  mercy.  It  gained 
confidence,  when  it  seemed  least  to  seek  it.  It  repressed  arrogance, 
by  overawing  or  confounding  it. 

To  say,  that,  as  a  judge,  he  was  wise,  impartial,  and  honest,  is 
but  to  attribute  to  him  those  qualifications,  without  which  the 
honors  of  the  bench  are  but  the  means  of  public  disgrace,  or 
contempt.  His  honesty  was  a  deep,  vital  principle,  not  measured 
out  by  worldly  rules.  His  impartiality  was  a  virtue  of  his  nature, 
disciplined  and  instructed  by  constant  reflection  upon  the  infirmity 
and  accountability  of  man.  His  wisdom  was  the  wisdom  of  the 
law,  chastened,  and  refined,  and  invigorated  by  study,  guided  by 
experience,  dwelling  little  on  theory,  but  constantly  enlarging  itself 
by  a  close  survey  of  principles. 

He  was  a  learned  judge.  I  do  not  mean  by  this  that  every- 
day learning,  which   may  be  gathered   up  by   a   hasty  reading  of 


•206  BIOGRAPHICAL    SKETCHES. 

books  and  cases  ;  but  that,  which  is  the  result  of  long  continued, 
laborious  services,  and  comprehensive  studies.  He  read  to  learn, 
and  not  to  quote  ;  to  digest  and  master,  and  not  merely  to  display. 
He  was  not  easily  satisfied.  If  he  was  not  as  profound  as  some, 
he  was  more  exact  than  most  men.  But  the  value  of  his  learning 
was,  that  it  was  the  keystone  of  all  his  judgments.  He  indulged 
not  the  rash  desire  to  fashion  the  law  to  his  own  views  ;  but  to 
follow  out  its  precepts  with  a  sincere  good  faith  and  simplicity. 
Hence  he  possessed  the  happy  faculty  of  yielding  just  the  proper 
weight  to  authority  :  neither,  on  the  one  hand,  surrendering  himself 
blindfold  to  the  dictates  of  other  judges,  nor,  on  the  other  hand, 
overruling  settled  doctrines  upon  his  own  private  notion  of  policy 
or  justice. 

In  short,  as  a  magistrate,  he  was  exemplary  and  able,  one  whom 
all  may  reverence,  and  but  few  may  hope  to  equal. 

But,  alter  all,  it  is  as  a  man,  that  those,  who  knew  him  best,  will 
most  love  to  contemplate  him.  There  was  a  daily  beauty  in  his 
life,  which  won  every  heart.  He  was  benevolent,  charitable, 
affectionate,  and  liberal,  in  the  best  sense  of  the  terms.  He  was  a 
Christian,  full  of  religious  sensibility,  and  religious  humility. 
Attached  to  the  Episcopal  church  by  education  and  choice,  he 
one  of  its  most  sincere,  but  unostentatious  friends.  He  was 
as  free  from  bigotry,  as  any  man  :  and,  at  the  same  time,  that  lie 
claimed  the  right  to  think  for  himself,  he  admitted  without  reserve 
the  same  right  in  others.  He  was,  therefore,  indulgent  even  to 
what  he  deemed  errors  in  doctrine,  and  abhorred  all  persecution 
for  conscience'  sake.  But  what  made  religion  most  attractive 
in  him,  and  gave  it  occasionally  even  a  sublime  expression,  was  its 
tranquil,  cheerful,  unobstrusive,  meek,  and  gentle  character. 
There  was  a  mingling  of  Christian  graces  in  him,  which  showed, 
that  the  habit  of  his  thoughts  was  fashioned  for  another  and  a 
heller  world.  Of  his  particular  opinions  on  doctrinal  points,  it  is 
not  my  intention  to  speak.  Such  as  they  were,  though  good  men 
may  differ  a-  to  their  correctness,  all  must  agree,  that  they  breathed 
the  spirit  of  an  inquisitive  Christian. 

He  was  a  real  lover  of  the  constitution  of  the  United  States; 
one  of  those,  who  assisied  in  iis  adoption,  and  steadily  and  uni- 
formly supported  it  throu  ;h  every  change  of  its  fortunes.  He  was 
a  good  old-fashioned  federalist,  of  the  school  of  the  days  of  Wash- 
ington. He  never  lost  his  confidence  in  the  political  principles, 
which  he  first  embraced.    He  was  always  distinguished  for  modera- 


HON.    BUSHROD    WASHINGTON.  207 

tion,  in  the  days  of  their  prosperity,  and  for  fidelity  to  them,  in  the 
days  of  their  adversity. 

I  have  not  said  too  much,  then,  in  saying,  that  such  a  man  is  a 
public  loss.  We  arc  not,  indeed,  called  to  mourn  over  him,  as 
one,  who  is  cut  off  prematurely  in  the  vigor  of  manhood.  He 
was  ripe  in  honors,  and  in  virtues.  But  the  departure  of  such  a 
man  severs  so  many  ties,  interrupts  so  many  delights,  withdraws 
so  many  confidences,  and  leaves  such  an  aching  void  in  the  hearts 
of  friends,  and  such  a  sense  of  desolation  among  associates,  that, 
while  we  how  to  the  decree  of  Providence,  our  griefs  cannot  but 
pour  themselves  out  in  sincere  lamentations. 


SKETCH 


OF  THE  CHARACTER   OF  THE  BON.  ISAM     PARKER,  CHIEF  JUSTICE  OF   THE 
SUPREME  COURT  OF  MASSACH1  SETTS. 


Mr.  Chief  Justice  Parker  brought  with  him  to  the  bench  the 
reputation  of  an  able,  active,  and  learned  advocate.  He  had  well 
earned  that  reputation,  by  a  course  of  long  and  honorable  practice 
in  the  then  District,  now  State  of  Maine.  His  talents,  high  as 
they  were,  were  not  his  only  recommendation.  He  possessed, 
what  talents  may  adorn,  but  what  talents,  however  shining  they 
may  be,  never  can  supply,  the  Mens  conscia  recti,  an  inflexible 
integrity,  a  deep-rooted  and  enlightened  virtue.  His  private  life 
was  without  reproach,  his  honor  without  stain,  his  political  and 
civil  career  straightforward  and  stead}-.  His  manners  were  frank, 
modest,  and  winning,  without  ostentation  and  without  affectation. 
Nature  had  given  him  a  mild  temperament,  a  quiet  and  mod- 
erated cheerfulness,  an  ingenuous  countenance,  and  social  kind- 
ness, which  pleased  without  effort,  and  was  itself  easily  pleased. 
But  his  most  striking  characteristic  was  sound  sense,  which, 
though  no  science,  is,  in  the  affairs  of  human  life,  fairly  worth  all 
others,  and  which  had  in  him  its  usual  accompaniments,  discretion, 
patience,  and  judgment.  In  his  professional  harangues  he  was  per- 
suasive and  interesting  ;  he  had  the  earnestness  of  one,  who  felt 
the  importance  of  fidelity  to  his  client,  and,  at  the  same  time, 
the  sincerity  of  one,  who  felt  the  dignity  of  truth,  and  of  that  juris- 
prudence, whose  servant  he  was,  and  whose  precepts  lie  was  not 
at  liberty  to  disown,  and  was  incapable  of  betraying.  In  the  sense 
sometimes  affixed  to  the  term,  he  did  not  possess  eloquence  ;  that 
is,  he  did  not  possess  that  vivid  imagination,  which  delights  in 
poetical  imagery, or  in  rhetorical  flourishes,  in  painting  the  passions, 
or  in  exciting  them  into  action.  He  was  not  addicted  to  a  rich 
and  gorgeous  diction,  or  to  coloring  his  thoughts  with  the  lights  and 
shades,  or  the  brilliant  contrasts,  of  a  variegated  style.     But  in  a 


CHIEF    JUSTICE     PARSER.  '209 

just  sense,  if  we  look  to  the  means  or  the  e\u\,  to  his  power  of 
commanding  attention,  or  his  power  of  persuading  and  convincing 
the  understanding,  he  might  he  deemed  truly  eloquent.  His  rea- 
sonings were  clear,  forcihle,  and  exact;  his  language,  chaste, 
pointed,  and  select;  his  fluency  of  speech,  uncommon  ;  his  action, 
animated  ;  so  that  in  their  actual  union  they  gave  a  charm  to  his 
arguments,  which  won  upon  the  ears  and  captivated  the  judgment 
of  his  audience. 

Such  was  the  reputation  and  character,  which  he  brought  to  the 
bench.  He  took  his  seat  among  distinguished  men  ;  and  he  sus- 
tained himself  as  a  worthy  and  equal  associate.  He  did  more,  and 
accomplished  what  kw  men  do  accomplish  ;  he  moved  on  with 
a  continual  increase  of  reputation,  even  to  the  very  hour  of  his 
death.  He  lived  through  times,  happily  now  past,  of  peculiar 
delicacy  and  difficulty ;  in  the  midst  of  great  political  changes 
and  excitements,  when  the  tribunals  of  justice  were  scarcely  free 
from  the  approaches  of  the  spirit  of  discord,  and  the  appeals  of 
party  were  almost  ready  to  silence  the  precepts  of  the  law.  Dur- 
ing this  period,  his  firmness,  moderation,  patience,  and  candor 
secured  to  him  the  public  confidence.  When  the  office  of  Chief 
Justice  became  vacant  by  the  lamented  death  of  Mr.  Chief  Justice 
Sewall,  all  eyes  were  turned  towards  him  as  the  successor.  His 
appointment  gave  universal  satisfaction.  And  yet,  if  he  had  died 
at  that  period,  half  of  his  real  merits  would  have  remained  unknown. 
His  ambition  was  now  roused  to  new  exertions  by  the  responsibility 
of  the  station  ;  his  mind  assumed  a  new  vigor  ;  his  industry  quick- 
ened into  superior  watchfulness  ;  and  he  expanded,  so  to  say,  to  the 
full  reach  of  his  official  duties.  It  was  a  critical  moment  in  the 
progress  of  our  jurisprudence.  We  wanted  a  cautious,  but  liberal 
mind,  to  aid  the  new  growth  of  principles,  to  enlarge  the  old  rules, 
to  infuse  a  vital  equity  into  the  system,  as  it  was  expanding  before 
us.  We  wanted  a  mind  to  do,  in  some  good  degree,  what  Lord 
Mansfield  had  done  in  England,  to  breathe  into  our  common  law  an 
energy,  suited  to  the  wants,  the  commercial  interests,  and  the  enter- 
prise of  the  age.  We  wanted  a  mind,  which,  with  sufficient  knowl- 
edge of  the  old  law,  was  yet  not  a  slave  to  its  forms  ;  which  was  bold 
enough  to  invigorate  it  with  new  principles,  not  from  the  desire  of 
innovation,  but  the  love  of  improvement.  We  wanted  sobriety  of 
judgment ;  but,  at  the  same  time,  a  free  spirit,  which  should  move 
over  the  still  depths  of  our  law,  and  animate  the  whole  mass. 
Such  a  man  was  Mr.  Chief  Justice  Parker.  And  whoever,  in  this 
27 


'210  BIOGRAPHICAL    SKETCHES. 

a^e,  or  in  any  future  age,  shall  critically  examine  the  decisions  of 
the  Supreme  Court,  during  the  sixteen  years,  in  which  he  presided 
over  it.  will  readily  acknowledge  the  truth  of  these  remarks. 

There  was  in  his  mind  an  original,  intrinsic  equity,  a  clear  per- 
ception of  abstract  right  and  justice,  and  of  the  best  mode  of  adapt- 
ing it  to  the  exigencies  of  the  case.  He  felt,  as  Lord  Ellenborough 
before  him  had  felt,  that  the  rules,  not  of  evidence  merely,  but  of  all 
substantial  law,  must  widen  with  the  wants  of  society  ;  that  they 
must  have  flexibility,  as  well  as  strength  ;  that  they  must  accomplish 
the  ends  of  justice,  and  not  bury  it  beneath  the  pressure  of  their  own 
weight.  There  is  in  this  respect  much,  very  much,  to  admire,  and, 
(if  it  were  possible,  in  our  reverence  for  the  dead,)  to  envy,  in  his 
judicial  career.  Few  men  have  ever  excelled  him  in  the  readiness 
of  grasping  a  cause,  of  developing  its  merits,  or  of  searching  out  its 
defects.  He  may  have  had  less  juridical  learning  than  some  men  ; 
but  no  man  more  thoroughly  mastered  all,  that  was  before  him,  or 
expounded  with  more  felicity  the  reasons  even  of  technical  doctrines. 
He  had  an  almost  intuitive  perception  of  the  real  principle,  per- 
vading a  whole  class  of  cases,  and  would  thread  it  through  all  their 
mazes  with  marvellous  ability.  His  written  opinions  are  full  of 
sagacitv,  and  juridical  aeuteness,  at  the  same  time,  that  they  possess 
a  singular  simplicity  and  ease.  He  rarely  fails  to  convince,  even 
when  he  questions  what  seems  justified  by  authority.  His  judicial 
style  is  a  fine  model.  It  is  equally  remarkable  for  propriety  of  lan- 
guage, order  of  arrangement,  neat  and  striking  turns  of  expression, 
and  a  lucid  current  of  reasoning,  which  flows  on  to  the  conclusion 
with  a  silent  but  almost  irresistible  force.  In  his  more  studied 
efforts,  in  some  of  those  great  causes,  in  which  the  whole  powers  of 
the  human  intellect  are  tasked  and  measured,  he  was  always  found 
equal  to  the  occasion.  There  are  not  a  few  of  his  opinions,  on 
some  of  these  intricate  subjects,  which  would  bear  a  close  rivalry 
with  the  best  in  Westminster  Hall  in  our  own  times.  There  are 
some,  which  any  judge  might  be  proud  to  number  among  those, 
destined  to  secure  his  own  immortality. 

But  we  must  stop  ;  the  time  for  mourning  over  such  a  loss  cannot 
soon  pass  away.  We  have  lost  a  great  magistrate,  and  an  excellent 
citizen.  Vain  is  the  voice  of  sorrow,  and  vainer  still  the  voice  of 
eulogy.  They  cannot  recall  the  past.  His  place  cannot  be  easily 
supplied  ;  for  it  is  difficult  to  combine  so  many  valuable  qualities  in 
a  single  character.  To  sum  up  his  in  one  sentence,  we  may  say, 
that,  as  a  judge,  he  was  eminent  for  sagacity,  aeuteness,  wisdom, 


CHIEF    JUSTICE    PARKER.  211 

impartiality,  and  dignity  ;  as  a  citizen,  for  public  spirit  and  elevated 
consistency  of  conduct;  as  a  man,  for  generosity,  gentleness,  and 
moral  purity.  His  lame  must  rest,  where  ii  is  lit  it  should,  upon 
the  printed  reports  of  his  own  decisions.  These  will  go  down  to 
future  ages;  and  though,  perhaps,  beyond  the  circle  of  the  profes- 
sion, they  may  not  attract  much  general  observation,  (for  the  misfor- 
tune of  the  profession  is,  that  great  judges  and  great  lawyers  can- 
not enjoy  a  wide-spread  popular  favor,)  they  will  yet  he  read  and 
honored  by  the  jurists  of  succeeding  times  with  undiminished  rev- 
erence, when  those  of  us,  who  have  known  and  loved  him,  shall 
be  mingled  with  the  dust,  that  now  gathers  round  his  remains. 
They  will  often  recall  to  the  classical  reader  the  beautiful  eulogy  of 
Cicero,  upon  a  great  character  of  antiquity,  so  applicable  to  his  : 
"  Erat  in  verborum  splendore  elegans,  compositione  aptus,  facultate 
copiosus  ;  eaque  erat  cum  sufnmo  ingenio,  turn  exercitationibus 
maximis  consecutus ;  rem  complectebatur  memoriter,  dividebat 
acute,  nee  praetermittebat  fere  quidquam,  quod  esset  in  causa,  aut 
ad  confirmandum  aut  ad  refellendum." 


SKETCH 


OF  THE  CHARACTER  OF  THE  BON.  WILLIAM  PINKNEY,  OF  MARYLAND.* 


William  Pinkney  died  at  Washington  on  the  twenty-fifth  of 
February,  of  the  present  year,  (1822,)  in  the  fifty-eighth  year  of 
his  age.  He  had  been  long  distinguished  among  the  statesmen  of 
this  country,  and  had  enjoyed  many  public  honors.  He  had  been 
a  commissioner,  under  the  British  treaty  of  1794  ;  Minister  Plenipo- 
tentiary, successively,  at  the  Courts  of  Great  Britain  and  Russia  ; 
and  Attorney  General  of  the  United  States.  At  the  time  of  his 
death,  he  was  a  Senator  in  Congress,  from  the  State  of  his  birth, 
(Mai  viand,)  a  situation,  which  he  filled  with  the  most  distinguished 
ability. 

Of  his  character,  as  a  statesman,  or  a  scholar,  it  is  not  tbe  design 
of  this  sketch  to  present  any  outline.  It  is,  as  an  advocate  and 
lawyer,  that  he  has  a  claim  to  receive  a  faint,  but  reverential  me- 
morial in  these  pages.  For  many  years  he  stood  at  the  head  of 
the  bar  of  Maryland  ;  and,  for  the  last  ten  years  of  his  life,  (the 
period,  during  which  he  principally  devoted  himself  to  the  business 
of  the  Supreme  Court  of  the  United  States,)  he  was  universally 
admitted  to  be  in  the  first  rank  of  the  profession  of  the  law, 
never  supposed,  by  any  one,  to  be  excelled  by  any  other 
advocate,  and  rarely  deemed  to  be  equalled.  His  person  was 
strong,  compact,  and  muscular,  exhibiting  great  vigor  of  action, 
with  no  small  grace  and  ease  of  movement.  His  countenance, 
without  being  strikingly  interesting  for  its  intelligence,  or  suavity, 
was  manly  and  open  ;  and,  when  excited  by  any  discussion,  was 
capable  of  the  most  powerful  and  various  expression,  suited  at 
once  for  the  playfulness  of  wit,  the  indignation  of  resentment,  or  the 

Tins  Sketch  was  originally  written  at  the  request  of  a  friend,  and  sent  to 
him.  It  is  now  printed  from  a  rough  copy,  made  at  the  time,  with  some  few 
alterations. 


HON.    WILLIAM    PINKNEY.  213 

solemn  dignity  of  argumentation.     His  mind  was  singularly  subtile 
and  penetrating,  equally  rapid  in  its  conceptions,  and  felicitous  in  the 
exposition  of  the  truths,  which  it  was  employed  to  developeor  analyze. 
In  native  genius,  or,  in  other  words,  in  the  power  to  invent,  se- 
lect, illustrate,  and  combine  topics  for  the  purposes  of  argument,  few 
men  have  been  his  superiors.     But  he  did  not  rely  exclusively  on 
the  resources  of  his  genius.     He  chastened,  improved,  and  invig- 
orated it  by  constant  study,  and  laborious  discipline.     He  was  from 
early  life  a  diligent  student,  not  only   of  the   law,  but  of  general 
literature,  and  especially  of  classical  literature.     He  was  ambitious 
to  be  not  only  a  good,  but  an  exact  scholar;  not  only  a  persuasive, 
but  an  elegant  writer  ;  not  only   a  splendid,  but  a  solid  speaker ; 
full  of  matter,  as  well  as  of  metaphor  ;  able   to  convince,  as  well 
as  to  instruct  and  please.     His  professional  learning  was  very  ex- 
tensive, deep,  and  accurate.     It  was  the  gradual  accumulation  of 
nearly  forty  years'  steady  devotion  to  the  science,  as  well  as  prac- 
tice, of  jurisprudence.     He  possessed  a  minute  acquaintance  with 
the   ancient  common   law.       Its   technical    principles,    and   feudal 
peculiarities,  its  quaint  illustrations,  its   subtile   distinctions,  and  its 
artificial,  but  nice,  logic,  were  all  familiar  to  his  early  thoughts,  and 
enabled  him,  in  the  later  periods  of  his  life,  to  expound  the  abstruse 
doctrines  of  modern  tenures  and  titles,  with  great  facility  and  per- 
spicuity.    But  his  studies   were  not  confined   to   mere  researches 
into  the  doctrines  of  the   old   law.     His   reading  was  very  exten- 
sive  in    all    the   departments   of    modern    jurisprudence  ;    and  his 
practice,    which  was,   perhaps,    more    various    than    that    of  any 
other  American  lawyer,    led  him   to   a   daily  application  of  all  his 
learning  in   the   actual  business  of  the  forum.     Few   men,   in   our 
country,  had  attained  so  exact,  thorough,  and  methodized  a  know- 
ledge, as  he,  of  the  general  principles  of  the  Law  of  Nations ;    of 
the  doctrines  of  the  Prize  and  Admiralty  Courts  ;  of  the  broad  and 
various  foundations  of  Equity  Jurisprudence  ;  and  of  the  admirable 
theories,  as  well  as  practical  developments,  of  all  the   branches  of 
Maritime  and  Commercial  Law. 

In  another  department  of  professional  learning,  peculiar  to  these 
United  States,  he  had  attained  a  proud  eminence.  It  was  in 
the  thorough  mastery  of  the  principles  of  Constitutional  Law.  His 
public  life  commenced  about  the  period,  when  the  constitution  of 
the  United  States  was  formed  and  adopted  by  the  people.  He 
was  familiar  with  all  the  early  controversies,  to  which  it  gave  rise, 
and  with  the  commentaries  and  glosses,  as  well  of  its  enemies  as  of 


214  BIOGRAPHICAL    SKETCHES. 

its  friends.  And  bis  large  experience,  as  a  statesman  and  advocate, 
gradually  fixed  in  his  mind  all  the  rides  for  the  true  interpretation 
of  its  powers,  its  spirit,  and  its  language.  No  one,  perhaps,  had 
weighed  with  more  exactness  or  deliberation  the  bearing  and  tenden- 
cy of  its  various  complicated  provisions.  No  one  felt  more  deeply 
its  absolute  and  indispensable  importance  to  the  existence  of  the 
nation.  No  one  more  sincerely  and  uniformly  contended  for  a 
liberal  exposition  of  its  granted  powers  and  privileges.  Hence  his 
arguments  upon  all  constitutional  questions  in  courts  of  justice,  as 
well  as  in  the  halls  of  legislation,  were  characterized  by  an  earnest- 
ness, a  gravity,  an  eloquence,  and  force  of  reasoning,  which  con- 
vinced everv  man.  who  heard  him,  that  he  spoke  his  own  opinions, 
under  the  deepest  sense  of  responsibility  to  his  country,  and  that 
he  sunk  the  advocate  in  the  higher  duties  of  the  statesman.  His 
last  thoughts  rested  with  an  anxious  solicitude  upon  the  future  des- 
tinies of  his  country.  His  last  moments  were  employed  in  profound 
investigations,  to  sustain  the  constitution  against  the  attacks,  made 
upon  it,  in  the  then  pending  struggles  for  state  sovereignty.  And 
the  writer  of  this  sketch  heard  the  declaration  from  his  own  lips, 
a  short  period  before  the  illness,  which  terminated  his  life,  that  he 
was  then  preparing  the  materials,  for  a  last  and  great  effort  on  this 
subject,  which,  as  a  commentary  upon  the  principles  and  powers 
of  the  constitution,  he  intended  to  bequeath  to  his  country,  as  the 
closing  labor  of  his  political  life. 

The  celebrity  of  Mr.  Pinkney,  as  a  public  speaker,  requires 
some  notice,  in  this  place,  of  the  nature  and  character  of  his  ora- 
tory. It  was,  in  manner,  original,  impressive,  and  vehement.  He 
had  some  natural,  and  some  acquired  defects,  which  made  him,  in 
some  degree,  fall  short  of  that  exquisite  conception  of  the  imagi- 
nation, a  perfect  orator.  His  voice  was  thick  and  guttural.  It 
rose  and  fell  with  little  melody  and  softening  of  tones,  and  was,  oc- 
casionally, abrupt  and  harsh  in  its  intonations,  and  wanting  in  liquid- 
ness  and  modulation.  At  times,  his  utterance  was  hurried  on  to  an 
excess  of  vehemence  ;  and  then,  as  it  were,  per  saltum,  he  would 
suffer  it  to  fall,  at  the  close  of  the  sentence,  to  a  low  and  indistinct 
whisper,  which  confused,  at  once,  the  sense  and  the  sound. 
This  inequality  of  elocution  did  not  seem  so  much  a  natural  defect, 
as  a  matter  of  choice,  or  artificial  cultivation.  But  the  effect, 
from  whatever  cause  it  arose,  was  unpleasing  ;  and  sometimes  gave 
to  his  speeches  the  air  of  too  much  study,  measured  dignity,  or 
dramatic  energy.     These,   however,  were   venial   faults,   open   to 


HON.     WILLIAM    PINKNEY.  215 

observation,  indeed,  but  soon  forgotten  by  those,  who  listened  to 
his  instructive  and  persuasive  reasoning;  for  no  man  could  hear 
him,  for  any  length  of  time,  without  being  led  captive  by  his  elo- 
quence. His  imagination  was  rich  and  inventive  ;  his  taste,  in 
general,  pure  and  critical  ;  and  his  memory  uncommonly  exact, 
full,  and  retentive.  He  attained  to  a  complete  mastery  of  the 
whole  compass  of  the  English  language  ;  and,  in  the  variety  of 
use,  as  well  as  the  choice  of  diction,  for  all  the  purposes  of  his 
public  labors,  he  possessed  a  marvellous  felicity.  It  gave  to  his 
style  an  air  of  originality,  force,  copiousness,  and  expressiveness, 
which  struck  the  most  careless  observer.  His  style  was  not, 
indeed,  like  that  of  Junius  ;  but  it  stood  out,  among  all  others, 
with  that  distinct  and  striking  peculiarity,  which  has  given  such 
fame  to  that  truly  great  unknown  author.  His  powers  of  amplifi- 
cation and  illustration,  whenever  these  were  appropriate  to  his  pur- 
pose, seemed  almost  inexhaustible  ;  though  he  possessed,  at  the 
same  time,  the  power  of  condensation,  both  of  thought  and  lan- 
guage, to  a  most  uncommon  degree.  He  never  used  his  powers  of 
amplification  and  illustration  for  mere  ornament ;  but  as  auxiliaries 
to  the  main  purposes  of  his  argument,  artfully  interweaving  thern 
with  the  solid  materials  of  the  fabric.  Occasionally,  indeed, 
he  would  indulge  himself  in  digressions,  of  such  singular  beauty 
and  brilliancy,  such  a  magnificence  of  phrase,  and  an  appropriate- 
ness of  allusion,  that  they  won  applause,  even  from  those,  whose 
functions  demand  a  severe  and  scrutinizing  indifference  to  every 
thing,  but  argument.  In  general,  his  speeches  did  not  abound  with 
rhetorical  flourishes,  or  sparkle  with  wit,  or  scorch  with  sarcasm  ; 
though  he  possessed  the  faculty  of  using  each  of  them  with  great 
skill  and  promptitude.  But  when  the  occasion  seemed  to  him, 
from  its  extraordinary  interest,  or  the  state  of  public  excitement, 
to  require  it,  his  speeches  abounded  with  poetical  imagery,  and 
ambitious  ornaments,  and  were  elaborated  with  all  the  studied 
amplitude  of  phrase  of  Burke  and  Bolingbroke. 

But  the  principal  and  distinguishing  faculty  of  Mr.  Pinkney's 
mind,  (in  which  few,  if  any,  have  ever  excelled  him,)  and  which 
gave  such  solid  weight  to  his  arguments,  and  carried  home  con- 
viction to  the  doubting  and  the  reluctant,  was  the  closeness,  acute- 
ness,  clearness,  and  vigor  of  his  power  of  ratiocination.  His 
luminous  analysis  of  the  merits  of  his  case,  his  severe  and  searching 
logic,  his  progressive  expansion  of  the  line  of  argument,  sustaining 
itself  at  every  step,  by  a  series  of  almost   impregnable   positions, 


216  BIOGRAPHICAL    SKETCHES. 

and  his  instantaneous  perception  of  tlie  slightest  infirmity  in  the 
arguments  or  concessions  of  his  adversary,  gave  him,  in  most 
debates,  a  captivating,  if  not  a  dangerous  superiority,  and  made  him, 
at  the  bar,  a  formidable  antagonist,  always  to  be  watched  with 
jealousy,  and  always  to  be  approached  with  caution. 

.Mr.  Pinkney  entertained  the  loftiest  notions  of  the  dignity  and 
utility  of  the  profession  ;  and  he  endeavoured,  on  all  occasions,  to 
diffuse  among  the  members  of  the  bar  the  deepest  sense  of  its 
importance,  and  responsibility  to  the  public.  He  was  desirous  of 
fame,  of  that  fame,  which  alone  is  enduring,  the  fame,  which 
reposes  on  sound  learning,  exalted  genius,  and  diligent,  nay,  inces- 
sant study.  Whatever  might  be  the  success  of  his  oratory  in  the 
estimate  of  other  persons,  it  never  seemed  to  reach  his  own  stand- 
ard of  excellence.  He  was,  therefore,  engaged  in  a  constant 
struggle,  not  merely  to  excel  others,  but  to  excel  himself;  and 
thus,  his  orations,  (for  such  many  of  his  speeches  were,)  and  his 
juridical  arguments,  were  perpetually  enriched  by  the  last  accumu- 
lations of  a  mind,  whose  ambition  never  tired,  and  whose  industry 
never  slackened,  in  its  professional  meditations  and  readings.  In 
these  respects,  bis  example  may  fitly  be  propounded  to  all,  who 
seek  solid  reputation  at  the  bar.  He  knew  well,  that  genius  with- 
out labor  could  accomplish  little  ;  and  that  he,  who  would 
enlighten  others,  or  be  foremost  in  the  race  of  life,  must  quicken 
his  own  thoughts,  by  giving  his  days  and  nights,  not  to  the  indul- 
gences of  pleasure,  or  the  soft  solicitudes  of  literary  ease,  but  to 
severe  discipline,  and  the  study  of  the  great  instructers  of  mankind 
in  learning  and  science.  His  loss,  in  this  edifying  and  cheering 
career,  will  long  be  felt.  It  has  cast  a  gloom  over  the  profession, 
which  can  be  dissipated  only  by  the  rise  of  some  other  master 
spirit,  to  guide,  to  cheer,  and  to  instruct  us. 

But  it  is  time  to  close  these  hasty  sketches.  Peace  to  the 
memory  of  so  great  a  man.  Whoever  recollects  him,  will,  almost 
involuntarily,  recur  to  a  passage  of  Cicero,  in  his  work  on  the 
famous  orators  of  antiquity,  descriptive  of  the  character  of  L.  Cras- 
sus  :  "  Crasso  nihil  statuo  fieri  potuisse  perfectius.  Erat  summa 
gravitas  ;  erat  cum  gravitate  junctus  facetiarum  et  urbanitatis  ora- 
torius,  non  scurrilis,  lepos  ;  loquendi  accurata,  et  sine  molestia 
diligens,  elegantia  ;  in  disserendo,  mira  explicatio;  cum  de  jure 
civili,  cum  de  aequo  et  bono  disputaretur  ,  argumentorum  et  simili- 
tudinum  copia.* 


"  Cicero.    De  Claris  Oral.  cap.  38. 


SKETCH 


OF  THE   CHARACTER  OF  THE   HOX.   THOMAS   A.   EMMET. 


[Copy  of  a  Letter  addressed  to  William  Sampson,  Esq.] 

Washington,  February  27,  1S29. 
Dear  Sir, 

I  had  the  pleasure  of  receiving  your  letter  yesterday.  I  should 
long  since  have  complied  with  your  request  in  regard  to  Mr.  Emmet, 
if  I  could  have  found  suitable  leisure  to  sit  down  and  make  even  a 
sketch  of  him,  such  as  I  thought  him  to  be  in  character  and  attain- 
ments.    Hitherto  I  have  sought  such  leisure  in  vain. 

It  was  in  the  winter  of  1815,  that  I  first  became  acquainted  with 
Mr.  Emmet.  He  was  then,  for  the  first  time,  in  attendance  upon 
the  Supreme  Court  at  Washington,  being  engaged  in  some  impor- 
tant prize  causes,  then  pending  in  the  court.  Although,  at  that 
period,  he  could  have  been  but  little,  if  any,  turned  of  fifty  years  of 
age,  the  deep  lines  of  care  were  marked  upon  his  face  ;  the  sad 
remembrances,  as  I  should  conjecture,  of  past  sufferings,  and  of 
those  anxieties,  which  wear  themselves  into  the  heart,  and  corrode 
the  very  elements  of  life.  There  was  an  air  of  subdued  thoughtful- 
ness  about  him,  that  read  to  me  the  lessons  of  other  interests  than 
those,  which  belonged  to  mere  professional  life.  He  was  cheerful, 
but  rarely,  if  ever,  gay ;  frank  and  courteous,  but  he  soon  relapsed 
into  gravity,  when  not  excited  by  the  conversation  of  others. 

Such,  1  remember,  were  my  early  impressions  ;  and  his  high 
professional  character,  as  well  as  some  passages  in  his  life,  gave  me 
a  strong  interest  in  all  that  concerned  him,  at  that  time.  There 
were,  too,  some  accidental  circumstances,  which  were  connected 
with  his  arguments  on  that  occasion,  which  left  a  vivid  impression 
upon  all,  who  had  the  pleasure  of  hearing  him.  It  was  at  this  time, 
that  Mr.  Pinkney,  of  Baltimore,  one  of  the  proudest  names  in  the 
28 


218  BIOGRAPHICAL    SKETCHES. 

annals  of  the  American  bar,  was  in  the  meridian  of  his  glory.  He 
had  been  often  tried  in  the  combats  of  the  forum  of  the  nation  ; 
and.  if  he  did  not  stand  quite  alone,  the  undisputed  victor  of  the 
field,  (and  it  might  be  deemed  invidious  for  me  to  point  out  any 
one,  as  "primus  into-  pans.)  he  was,  nevertheless,  admitted  by  the 
genera]  voice  not  to  be  surpassed  by  any  of  the  noble  minds,  with 
whom  he  was  accustomed  to  wrestle  in  forensic  contests.  Mr. 
Emmet  was  a  new  and  untried  opponent,  and  brought  with  him  the 
ample  honors,  gained  at  one  of  the  most  distinguished  bars  in  the 
Union.  In  the  only  causes,  in  which  Air.  Emmet  was  engaged, 
Mr.  Pinkney  was  retained  on  the  other  side  ;  and  each  of  these 
causes  was  full  of  important  matter,  bearing  upon  the  public  policy 
and  prize  law  of  the  country.  Curiosity  was  awakened  ;  their 
mutual  friends  waited  for  the  struggle  with  impatient  eagerness  ; 
and  a  generous  rivalry,  roused  by  the  public  expectations,  imparted 
itself  to  their  own  bosoms.  A  large  and  truly  intelligent  audience 
was  present  at  the  argument  of  the  first  cause.  It  was  not  one, 
which  gave  much  scope  to  Mr.  Emmet's  peculiar  powers.  The 
topic  was  one,  with  which  he  was  not  very  familiar.  He  was  new 
to  the  scene,  and  somewhat  embarrassed  by  its  novelty.  His 
argument  was  clear  and  forcible  ;  but  he  was  conscious,  that  it  was 
not  one  of  his  happiest  efforts.  On  the  other  hand,  his  rival  was 
perfectly  familiar  with  the  whole  range  of  prize  law ;  he  was  at 
home,  both  in  the  topic  and  the  scene.  He  won  an  easy  victory, 
and  pressed  his  advantages  with  vast  dexterity,  and,  as  Mr.  Emmet 
thought,  with  somewhat  of  the  display  of  triumph.  The  case  of 
the  Nereide,  so  well  known  in  our  prize  history,  was  soon  afterwards 
called  on  for  trial.  In  this  second  effort,  Mr.  Emmet  was  far  more 
successful.  His  speech  was  greatly  admired  for  its  force  and  fervor, 
its  variety  of  research,  and  its  touching  eloquence.  It  placed  him 
at  once,  by  universal  consent,  in  the  first  rank  of  American  advo- 
cates. 1  do  not  mean  to  intimate,  that  it  placed  him  before  Mr. 
Pinkney,  who  was  again  his  noble  rival  for  victory.  But  it  settled, 
henceforth  and  for  ever,  his  claims  to  very  high  distinction  in  the 
profession.  In  the  course  of  the  exordium  of  this  speech,  he  took 
occasion  to  mention  the  embarrassment  of  his  own  situation,  the 
novelty  ol  the  forum,  and  the  public  expectations,  which  accom- 
panied the  cause.  He  spoke  with  generous  praise  of  the  talents 
and  acquirements  of  his  opponent,  whom  fame  and  fortune  had 
followed  both  in  Europe  and  America.  And  then,  in  the  most 
delicate  and  affecting  manner,  he  alluded  to  the  events  of  his  own 


HON.    THOMAS    A.    EMMET.  '219 

life,  in  which  misfortune  and  sorrow  had  left  many  deep  traces  of 
their  ravages.  "  My  ambition,"  said  he,  "  was  extinguished  in 
my  youth  ;  and  I  am  admonished  by  the  premature  advances  of 
age,  not  now  to  attempt  the  dangerous  paths  of  fame."  At  the 
moment  when  he  spoke,  the  recollections  of  his  sufferings  melted 
the  hearts  of  the  audience,  and  many  of  them  were  dissolved  in 
tears.  Let  me  add,  that  the  argument  of  Mr.  Pinkney,  also,  was 
a  most  splendid  effort,  and  fully  sustained  his  reputation. 

From  that  period,  I  was  accustomed  to  hear  Mr.  Emmet  at  the 
bar  of  the  Supreme  Court,  in  almost  every  variety  of  causes  ;  and 
my  respect  for  his  talents  constantly  increased  until  the  close  of  his 
life.  I  take  pleasure  in  adding,  that  his  affability,  his  modest  and 
unassuming  manner,  his  warm  feelings,  and  his  private  virtues,  gave 
a  charm  to  his  character,  which  made  it  at  once  my  study  and 
delight. 

It  would  ill  become  me  to  attempt  a  sketch  of  the  character  of 
Mr.  Emmet.  That  is  the  privilege,  and  will  be  (as  it  ought)  the 
melancholy  pleasure,  of  those,  who  were  familiar  with  him  in  every 
walk  of  life,  to  whom  he  unbosomed  himself  in  the  freedom  of 
intimacy,  and  who  have  caught  the  light  plays  of  his  fancy,  as  well 
as  the  more  profound  workings  of  his  soul. 

That  he  had  great  qualities  as  an  orator,  cannot  be  doubted  by 
any  one,  who  has  heard  him.  His  mind  possessed  a  good  deal  of 
the  fervor,  which  characterizes  his  countrymen.  It  was  quick, 
vigorous,  searching,  and  buoyant.  He  kindled  as  he  spoke.  There 
was  a  spontaneous  combustion,  as  it  were,  not  sparkling,  but  clear 
and  glowing.  His  rhetoric  was  never  florid  ;  and  his  diction,  though 
select  and  pure,  seemed  the  common  dress  of  his  thoughts,  as  they 
arose,  rather  than  any  studied  effort  at  ornament.  Without  being 
deficient  in  imagination,  he  seldom  drew  upon  it  for  resources  to 
aid  the  effect  of  his  arguments,  or  to  illustrate  his  thoughts.  His 
object  seemed  to  be,  not  to  excite  wonder  or  surprise,  to  captivate 
by  bright  pictures,  and  varied  images,  and  graceful  groups,  and 
startling  apparitions  ;  but  by  earnest  and  close  reasoning  to  convince 
the  judgment,  or  to  overwhelm  the  heart  by  awakening  its  most 
profound  emotions.  His  own  feelings  were  warm  and  easily  touched. 
His  sensibility  was  keen,  and  refined  itself  almost  into  a  melting 
tenderness.  His  knowledge  of  the  human  heart  was  various  and 
exact.  He  was  easily  captivated  by  the  belief,  that  his  own  cause 
was  just.     Hence,  his  eloquence  was   most   striking  for  its  persua- 


220  BIOGRAPHICAL    SKETCHES. 

siveness.  He  said  what  he  felt ;  and  he  felt  what  he  said.  His 
command  over  the  passions  of  others  was  an  instantaneous  and 
sympathetic  action.  The  tones  of  his  voice,  when  he  touched  on 
topics  calling  for  deep  feeling,  were  themselves  instinct  with  mean- 
ing.    They  were  utterances  of  the  soul,  as  well  as  of  the  lips. 


REVIEWS 


. 


REVIEW 


OF  A  COURSE  OF  LEGAL  STUDY  RESPECTFULLY  ADDRESSED  TO  THE 
STUDENTS  OF  LAW  IN  THE  UNITED  STATES,  BY  DAVID  HOFFMAN, 
PROFESSOR   OF   LAW   IN   THE    UNIVERSITY    OF   MARYLAND. 


[First  published  in  the  North  American  Review,  1817.] 

The  great  progress,  which  has  been  made  in  mathematical  and 
physical  science  during  the  last  two  centuries,  has  attracted  the 
attention,  not  only  of  philosophers,  but  of  men  of  business.  So 
intimately,  indeed,  has  this  progress  connected  itself  with  the 
immediate  wants  and  comforts  of  mankind,  that  it  can  scarcely 
escape  the  most  careless  observer.  But  the  progress  of  moral, 
political,  and  juridical  science  during  the  same  period,  though  less 
perceptible  to  the  common  eye,  is  not  less  wonderful  ;  and  has, 
quite  as  much,  contributed  to  the  improvement  of  the  human  race, 
and  to  the  development  and  security  of  their  most  important  rights 
and  interests.  Few  persons,  indeed,  are  sufficiently  aware,  how 
forcible,  though  silent,  is  the  operation  of  laws  upon  our  manners, 
habits,  and  feelings  ;  and  how  much  of  our  happiness  depends 
upon  a  uniform  and  enlightened  administration  of  public  justice. 
Whatever  of  rational  liberty,  and  security  to  private  rights  and 
property,  is  now  enjoyed  in  England,  and  in  the  United  States, 
may,  in  a  great  degree,  be  traced  to  the  principles  of  the  common 
law,  as  it  has  been  moulded  and  fashioned,  from  age  to  age,  by 
wise  and  learned  judges.  Not  that  the  common  law,  in  its  origin, 
or  early  stages,  was  peculiarly  fitted  for  these  purposes  ;  for  the 
feudal  system,  with  which  it  originated,  or,  at  least,  became  early 
incorporated,  was  a  system,  in  many  respects,  the  very  reverse  ; 
but  that  it  had  the  advantage  of  expanding  with  the  improvements 
of  the   age,  and  of  continually  enlarging  itself  by  an  adoption  of 


224  REVIEWS. 

those  maxims  of  civil  right,  which,  by  their  intrinsic  justice  and 
propriety,  commend  themselves  to  the  bosoms  of  all  men.  The 
narrow  maxims  of  one  age  have  not  been  permitted  to  present 
insurmountable  obstacles  to  the  improvements  of  another;  but  they 
have  become  gradually  obsolete,  or  confined  to  a  very  insignificant 
range. 

If  it  were  not  beside  our  present  purpose,  we  might  illustrate 
these  remarks,  by  calling  the  attention  of  our  readers  to  the  fact, 
that,  since  the  reign  of  queen  Elizabeth,  nearly  the  whole  system  of 
equity  has  been  created  :  and  that  the  commercial  contracts,  which 
form  so  great  a  portion  of  the  business  of  our  courts,  were,  before 
that  period,  either  wholly  unknown,  or,  at  the  most,  but  very  im- 
perfectly understood.  In  respect  to  insurance,  we  may  almost  say, 
that  the  law  has  grown  up  within  the  latter  half  of  the  eighteenth 
century.  Previously  to  the  time  of  Lord  Mansfield,  there  are  but 
few  cases  in  the  reports,  which  are  entitled  to  much  respect,  either 
for  their  sound  interpretation  of  principles,  or  general  applicability. 
It  is  to  his  genius,  liberality,  learning,  and  thorough  understanding 
of  the  maritime  jurists  of  the  continent,  of  Cleirac,  and  Roccus, 
and  Straccha,  and  Santerna,  and  Loccenius,  and  Caseregis,  and 
Valin,  and  to  his  ardent  attachment  to  the  equitable  doctrines  of 
the  civil  law,  that  we  are  chiefly  indebted  for  that  beautiful  and 
rational  system,  which  now  adorns  this  branch  of  the  common  law. 
The  doctrine  of  bailments  too,  (which  lies  at  the  foundation  of  the 
law  of  shipments,)  was  almost  struck  out  at  a  single  heat  by 
Lord  Holt,*  who  had  the  good  sense  to  incorporate  into  the  En- 
glish code  that  system,  which  the  text  and  the  commentaries  of 
the  civil  law  had  already  built  up  on  the  continent  of  Europe. 
What  remained,  to  give  perfect  symmetry  and  connexion  to  all  the 
parts  of  that  system,  and  to  refer  it  to  its  principles,  has  been 
accomplished,  in  our  times,  by  the  incomparable  Essay  of  Sir 
William  Jones,  a  man,  of  whom  it  is  difficult  to  say,  which  is 
most  worthy  of  admiration,  the  splendor  of  his  genius,  the  rareness 
and  extent  of  his  acquirements,  or  the  unspotted  purity  of  his  life. 
Had  he  never  written  any  thing  but  his  Essay  on  Bailments,  he 
would  have  left  a  name,  unrivalled  in  the  common  law,  for  philo- 
sophical accuracy,  elegant  learning,  and  finished  analysis.  Even 
cold  and  cautious,  as  is  the  habit,  il"  not  the  structure,  of  a  profes- 
sional mind,  it  is  impossible  to  suppress  enthusiasm,  when  we  con- 
template such  a  man. 

*  The  case  of  Coggs  o.  Bernard.     2  Ld.  Raym.  R.  909. 


Hoffman's  course  of  legal  study.       225 

We  recall  ourselves  to  the  more  immediate  topics,  on  which  we 
have  already  touched.  Of  the  law  of  bills  of  exchange  and  promis- 
sory notes,  how  little  can  be  gleaned  from  works  before  the  reign 
of  William  and  Alary  !  And  how  many  of  its  most  useful  prin- 
ciples are  younger  than  the  days  (as  Swift  calls  her)  of  good 
queen  Anne  !  In  the  reign  of  George  III.,  more  has  been  clone 
to  give  a  scientific  cast  to  these  doctrines,  than  in  all  the  preced- 
ing ages.  And  here,  again,  we  may  remark,  how  much  has  been 
gained  by  the  accessions  and  alluvions  of  the  civil  law.  It  is  im- 
possible to  read  the  older  decisions,  without  reviving  the  memory 
of  Marius  and  Casaregis  ;  or  the  later,  without  perceiving  their 
general  coincidence  with  the  summary,  but  profound  treatise  of 
Pothier.  If  we  pass  to  the  other  branches  of  commercial  law, 
we  shall  find  the  improvements  not  less  striking,  nor  less  impor- 
tant. Molloy  and  Malynes,  feeble  and  inaccurate  as  their  trea- 
tises are  now  confessed  to  be,  were,  until  comparatively  a  recent 
period,  the  principal,  though  erring  guides  of  the  profession,  in 
questions  respecting  the  rights  and  duties  of  owners,  masters,  and 
mariners,  of  shippers  and  freighters,  of  average,  salvage,  and 
contribution.  In  what  part  of  either  of  these  writers,  or  of  any 
contemporary,  or  more  ancient  reporters,  shall  we  find  the  doctrines 
relative  to  the  earning  and  loss  of  freight  and  wages,  or  relative  to 
charter  parties,  bills  of  lading,  stoppage  in  transitu,  and  liens,  so 
familiar  to  the  modern  merchant  and  lawyer,  traced  out  with  the 
important  practical  distinctions  belonging  to  them  ?  What  was  then 
despatched  in  a  few  pages,  would  now  require  a  large  volume. 
Much  might,  even  at  that  period,  have  been  acquired  by  a  dili- 
gent study  of  the  maritime  jurists  of  the  continent ;  but  they  were 
either  unknown,  or,  with  one  or  two  exceptions,  passed  over  in 
silent  neglect.  The  truth  is,  that  maritime  law  had  then  but 
little  attracted  the  attention  of  the  courts  of  common  law  ;  and 
the  only  court,  in  which  the  subject  was  much  considered,  (we 
mean  the  Admiralty,)  labored  under  the  severe  hostility  of  these 
courts,  and  had  to  maintain  an  arduous  struggle  even  for  existence. 
Under  such  circumstances,  its  judgments  and  opinions  carried  little 
weight  in  Westminster  Hall  ;  for  few  were  willing  to  listen  to  prin- 
ciples, which  had  no  authority  beyond  the  narrow  walks  of  Doc- 
tors Commons.  If  we  except  the  aid  borrowed  from  the  civilians 
of  the  continent,  the  masterly  treatise  of  Mr.  Abbott  on  the  law 
of  shipping  is  principally  founded  on  the  adjudications  since  the 
elevation  of  Lord  Mansfield  to  the  bench  ;  and  in  these  adjudica- 
29 


226  REVIEWS. 

tions,  the  general  consistency  with  principle  is  as  distinguishable,  as 
their  practical  importance. 

We  have  the  rather  dwelt  upon  these  improvements  in  maritime 
law,  because  they  are  most  obvious  to  the  general  observer,  and, 
therefore,  most  readily  admitted.  In  the  several  branches  of  this 
law,  instead  of  a  few  elementary  principles,  and  a  few  decisions, 
turning  upon  nice  distinctions,  we  have  now  a  regular  system  ; 
which,  though  not  entirely  perfect,  exhibits  such  a  scientific  ar- 
rangement and  harmony  of  principles,  that,  in  most  of  the  ques- 
tions arising  in  practice,  the  profession  arc  enabled  to  relieve 
themselves  from  those  distressing  doubts,  which  never  fail  to  bring 
discredit  upon  the  law  for  its  supposed  uncertainty.  But  improve- 
ment has  not  been  confined  to  commercial  law.  A  spirit  of 
scientific  research  has  diffused  itself  over  the  other  departments  of 
the  common  law  ;  contested  questions  are  now,  and  for  a  long  time 
have  been,  sifted  with  the  most  laborious  diligence,  and  the  limits 
of  principles  established,  with  a  philosophical  precision  and  accuracy, 
which  is  rarely  observable  in  the  old  reports.  The  doctrines  of 
uses  and  trusts,  of  last  wills  and  testaments,  of  contingent  remain- 
ders, of  executory  devises,  and  of  legacies,  although  resting  on 
ancient  and  immovable  foundations,  are  reduced  to  a  very  high 
degree  of  exactness  and  consistency,  and  followed  out  into  their 
regular  results  with  a  truly  logical  conformity  to  principles,  for 
which  we  might  search  in  vain  in  the  annals  of  former  times. 

But,  although  much  has  been  done  in  modern  times,  to  metho- 
dize the  common  law,  and  give  it  a  systematic  character,  so  that 
we  may,  not  only  arrive  at  its  principles  by  regular  analysis,  but 
teach  its  elements  and  distinctions  by  an  enlarged  synthesis ;  yet 
it  is  not  to  be  imagined,  that  the  profession  have  to  encounter  less 
labor,  or  to  exercise  less  diligence,  than  formerly,  in  order  to 
obtain  a  mastery  of  the  science;  or  that  there  is  little  uncertainty 
in  applying  it  to  the  solution  of  those  questions,  which  perpetually 
arise  in  human  transactions.  To  a  certain  extent,  law  must  for 
ever  he  subject  to  uncertainty  and  doubt;  not  from  the  obscurity 
and  fluctuation  of  decisions,  as  the  vulgar  erroneously  suppose, 
but  from  the  endless  complexity  and  variety  of  human  actions. 
However  certain  may  be  the  rules  of  the  statute  or  common  law, 
they  must  necessarily  be  general  in  their  language,  and  incapable 
of  a  minute  and  perfect  application  to  the  boundless  circumstances 
of  life,  which  may  modify,  limit,  or  affect  them.  It  is  impossible 
to  provide  by  any  code,  however  extensive,  for  the  infinite  variety 


Hoffman's  course  of  legal  study.  227 

of  distinctions,  as  to  civil  justice,  arising  from  the  imperfection  of 
human  language  and  foresight,  from  the  conflict  of  opposing  rights, 
from  the  eilect  of  real  or  apparent  hardships,  and  from  those 
minute  equities,  which  are  often  found  in  different  scales,  adding 
somewhat  to  the  weight  of  each,  but  rarely  forming  an  exact  equi- 
poise. Until  human  actions  are  capable  of  being  limited  on  every 
side  to  a  definite  range  of  circumstances,  the  permutations  and 
combinations  of  which  may  be  perfectly  ascertained  and  enume- 
rated ;  until  there  shall  be  an  entire  separation  of  right  from 
wrong  in  all  the  business  of  life,  and  the  elements  of  each  shall  be 
immiscible  and  repulsive ;  until,  in  short,  we  shall  become  abso- 
lutely pure  and  perfect  in  our  actions,  and  perfectly  conusant  of  all 
the  operations  of  the  past,  the  present,  and  the  future  ;  there  will 
remain  immeasurable  uncertainties  in  the  law,  which  will  call  for 
the  exercise  of  professional  talents,  and  the  grave  judgments  of 
courts  of  justice.  We  must  be  content,  since  we  cannot  hope  to 
realize  these  Utopian  dreams  of  human  excellence,  to  secure  the 
upright  and  enlightened  administration  of  justice,  by  encouraging 
learned  advocates  to  fit  themselves  for  eminence  at  the  bar,  and  by 
supporting  with  liberal  salaries  the  dignity,  the  virtue,  and  the  inde- 
pendence of  the  bench. 

We  have  already  intimated  an  opinion,  that  the  improvements 
in  the  various  departments  of  law  have  in  no  degree  lessened  the 
necessity  of  laborious  study  to  qualify  gentlemen  for  the  higher  walks 
of  the  profession.  The  changes  of  two  centuries  have  greatly 
facilitated  the  means  of  acquiring  a  thorough  knowledge  of  the 
science ;  but  they  have  also  widened  the  circle  to  an  almost  incal- 
culable extent.  Sir  Henry  Spelman  has  left  us  a  striking  picture 
of  the  difficulties  and  discouragements  of  the  study,  of  his  own 
time.  In  his  preface  to  his  Glossary,  he  says,  "  Emisit  me  [mater] 
tamen  sub  anno  altero  [1579]  Londinum  juris  nostri  capessendi 
gratia  ;  cujus  cum  vestibulum  salutassem,  reperissemque  linguam 
peregrinam,  dialectum  barbaram,  methodum  inconcinnam,  molem 
non  ingentem  solum,  sed  perpetuis  humeris  sustinendam,  excidit, 
fateor,  animus,  blandioribusque  subridens  musis,  rigidam  hanc 
minervam,  ferreis  amplexibus  coercendam,  leni  molimine  delibari." 
To  be  sure,  the  discouragements  of  that  day  were  not  inconsidera- 
ble ;  the  whole  of  the  law  was  locked  up  in  barbarous  Latin,  and 
still  more  barbarous  Norman  French.  The  doctrines  of  special 
pleading  were  obscured  by  the  shades  of  a  dead  language,  and  by 
the  embarrassing  subtilties  of  scholastic  refinement.      The  great 


'J  -J-  REVIEWS. 

body  of  the  law  was  to  be  principally  extracted  from  the  Year 
Books,  and  the  elaborate,  though  unmethodical  abridgments  of 
Statham,  Fitzherbert,  and  Brooke.  The  only  guides,  which  could 
be  said  to  illumine  the  way,  were  the  brief,  but  profound  text  of 
Littleton  on  Tenures,  the  authoritative  and  methodical  sketch  of 
Glanville,  the  comprehensive,  exact,  and  learned  treatise  of  Brac- 
ton,  (whom  Sir  William  Jones  has  justly  characterized  as  the  best 
of  our  juridical  classics),  and  the  perspicuous  and  compact  work 
of  Fleta,  in  which  the  unknown  author  follows  with  steady  foot- 
steps the  path  of  his  master.  If  to  these  we  add  the  old  Tenures, 
the  old  and  the  new  iNatura  Brevium,  the  Register  of  original 
writs,  the  works  of  Britton  and  Staundford,  the  very  able  dialogues 
of  St.  German  between  a  Doctor  and  Student,  the  acute  and 
subtile  notes  of  Perkins,  and  the  diffuse,  but  accurate  and  learned, 
commentaries  of  Plowden,*  we  have  the  bulk  of  juridical  authors, 
which  were  to  be  mastered  by  the  student  at  the  time,  to  which 
Sir  Henry  Spelman  refers.  We  do  not  mean  to  undi  rvalue  the 
labor,  which  was  necessary  to  accomplish  this  arduous  task  ;  and 
we  well  know,  that,  what  works  did  not  then  supply,  could  be  ac- 
quired only  by  the  dry  practice  of  a  black  letter  office,  and  a  con- 
stant and  fatiguing  attention  upon  courts  of  justice.  But  adding 
every  thing,  which  the  most  strenuous  advocate  of  the  ancient  law" 
would  ask,  we  may  safely  pronounce,  that  the  labors  of  a  modern 
student,  if  he  means  to  attain  eminence,  must  be  infinitely  greater. 
To  be  a  sound  lawyer,  he  must  not  merely  taste,  but  drink  deep 
at  the  ancient  fountains  of  the  law.  He  must  acquire  an  accurate 
knowledge  of  the  feudal  tenures,  and  of  the  ancient  doctrines  con- 
nected therewith,  because  they  constitute  the  rudiments  of  the  law 
of  real  estates  ;  and  yet,  much  of  this  learning  is  remote  from  com- 
mon use,  and  lies  deep  in  the  dark  and  uncouth  text  of  the  primi- 
tive writers.  He  must  be  initiated  into  the  mysteries  of  real  actions, 
which  will  at  once  carry  him  back  three  centuries  ;  for,  since  the 
days  of  queen  Elizabeth,  these  actions  have  gradually  sunk  into 
neglect;  and  unless  he  thoroughly  comprehends  them,  he  can 
hardly  be  master  of  the  modern  actions  of  trespass  and  ejectment, 
not  to  speak  of  our  own  state,  where  real  actions  exist  in  their 
vigor,  and  remain  the  great  remedies  for  deciding  titles.  If  we 
add  to  this  the  necessary  learning  of  personal   actions,   founded  on 

*  The  oilier  reporters  of  iliis  period,  lieilway,  Anderson,  Moon-,  &.C.,  were  not 
then  published.  The  Minor  of  Justices,  though  of  an  earlier  time,  did  not 
appear  until  a  half  century  afterwards.  There  are  some  few  other  works  of  this 
period,  but  they  were  not  thought  worth  a  distinct  enumeration. 


Hoffman's  course  of  legal  study.  229 

torts  or  contracts,  which  in  modem  times  have  branched  out  into 
an  almost  endless  variety,  we  shall  have  some  notion  of  the  extent 
of  the  labor,  which  is  now  requisite  to  the  attainment  of  the  first 
rank  in  the  profession. 

This  view  of  the  subject  may  appear  appalling  to  young  gentle- 
men, who  are  just  quitting  our  universities,  with  the  intention  of 
devoting  their  lives  to  the  scienee  of  jurisprudence.  It  ought, 
however,  to  be  a  great  consolation  to  them,  that  the  elementary 
writers  are  more  faithful,  more  accurate,  and  more  polished,  than 
in  former  times.  The  paths  may  not  always  be  well  cleared,  nor 
the  prospects  interesting  ;  but,  in  almost  every  direction,  there  will 
be  found  learned  guides,  who  cannot  fail  to  diffuse  a  bright  and 
steady  cheerfulness,  during  the  most  rugged  journeys. 

The  superior  advantages,  in  this  respect,  of  our  own  times  over 
the  past,  will  be  apparent  upon  the  slightest  reflection.  If  we  look 
back  to  the  termination  of  the  century,  succeeding  the  period,  to 
which  Sir  Henry  Spelman  alluded,  we  shall  find,  that  the  student 
had  comparatively  few7  additional  elementary  works  to  assist  his 
progress.  Lord  Hale,  in  his  preface  to  Rolle's  Abridgment,  (in 
1668,)  gives  us  a  list  of  those,  which  were  most  useful,  and  he  con- 
tents himself  with  adding  to  those  already  named  by  us,  Rolle's 
Abridgment,  Lord  Coke's  Institutes,  and  the  intermediate  reporters 
between  bis  own  time  and  Plowden.*  Not  but  that  some  other 
elementary  works  had  in  the  mean  time  been  published  ;  but  they 
were  not  deemed  by  him  peculiarly  useful  to  students.  We  have 
also,  yet  remaining,  a  letter  of  Lord  Chief  Justice  Reeve,  addressed 
to  his  nephew  about  seventy  years  later,  (9  Geo.  II.,)  on  the  study 
of  the  lawT,  by  which  we  find,  that,  in  bis  opinion,  (with  which  we 
do  not  coincide,)  Finch's  Law,  Hale's  History  of  the  Common 
Law,  and  Wood's  Institutes,  were  the  most  material  elementary 
works,  that  had  been  added  to  the  old  stock  during  this  whole 
period. f 

The  publication  of  Blackstone's  Commentaries  (in  1765) 
constituted  a  new  epoch  in  the  annals  of  the  common  law.  Pre- 
viously to  that  period,  the  learned  author  had  published  his  Analysis 
of  the  laws  of  England,  J  which  exhibited  the  outline  of  the 
method   and    principal   divisions,    which   the   Commentaries    were 

*  Lord  Hale's  preface  to  Rolle  is  well  worth  the  diligent  perusal  of  students, 
t  The   letter  of  Lord  Chief  Justice   Reeve  is  published  in  the    Collectanea 
Juridica,  vol.  i.  p.  79. 

i  The  Analysis  was  first  published  in  1756 


230  REVIEWS. 

intended  to  fill  up,  in  pursuance,  indeed,  of  the  plan,  which  had 
been  previously  sketched  by  the  masterly  pen  of  Lord  Hale.  Of 
a  work,  which  has  been  so  long  before  the  public  as  Blackstone's 
Commentaries,  it  cannot  be  necessary  for  us  to  utter  one  word  of 
approbation.  For  luminous  method,  for  profound  research,  for 
purity  of  diction,  for  comprehensive  brevity,  and  pregnancy  of 
matter,  for  richness  in  classical  allusions,  and  for  extent  and  variety 
of  knowledge  of  foreign  jurisprudence,  whether  introduced  for 
illustration,  or  ornament,  or  instruction,  it  is  not  too  much  to  say, 
that  it  stands  unrivalled  in  ours,  and,  perhaps,  in  every  other  lan- 
guage. There  have  not,  however,  been  wanting,  of  late  years, 
attempts  to  undervalue  the  importance  of  these  Commentaries. 
It  has  been  suggested,  that  in  some  parts  the  work  is  superficial, 
and  in  others,  too  general  and  elementary  ;  that  it  cannot  be  safely 
relied  on  as  authority  ;  and  that  it  teaches' the  science  so  imperfectly, 
that  it  has  almost  as  great  a  tendency  to  mislead,  as  to  instruct. 
These  objections  seem  to  us  founded  upon  a  total  misconception 
of  the  design  of  the  work.  The  author  did  not  undertake  to 
exhibit  a  full  and  perfect  view  of  the  common  law,  but  merely  a 
summary  sketch  of  its   most   important   doctrines   and  distinctions. 

That  some  errors  may  be  found  by  a  strict  scrutiny  cannot  be 
denied  ;  but,  from  the  vast  extent  and  variety  of  the  materials,  such 
errors  were  to  be  expected.  The  only  wonder  is,  that  so  much 
should  have  been  accomplished,  with  so  little  intermixture  of  false 
doctrine,  and  obscure  and  inaccurate  statement.  We  cannot  ex- 
press our  own  sentiments  better  than  in  the  language  of  that  admi- 
rable ornament  of  juridical  literature,  Sir  William  Jones  :  "  His 
Commentaries  are  the  most  correct  and  beautiful  outline,  that  ever 
was  exhibited  of  any  human  science  ;  but  they  alone  will  no  more 
form  a  lawyer,  than  a  general  map  of  the  world,  how  accurately 
and  elegantly  soever  it  may  be  delineated,  will  make  a  geographer. 
If,  indeed,  all  the  titles,  which  he  professed  only  to  sketch  in  ele- 
mentary discourses,  were  filled  up  with  exactness  and  perspicuity, 
Englishmen  might  hope  at  length  to  possess  a  digest  of  their  own 
laws,  which  would  leave  but  little  room  for  controversy,  except  in 
cases  depending  on  their  particular  circumstances."  —  (Jones  on 
Bailments,  3,  4.) 

But  the  most  incontestible  proof  of  the  excellence  of  the  work 
is  to  be  found  in  the  striking  effects,  which  its  publication  produced 
in  every  department  of  the  common  law.  By  the  elegance  of  its 
style,  and  the  novel  dress,  in  which  it  clothed  the  elements  of  law, 


Hoffman's  course  of  legal  study.       231 

it  immediately  attracted  universal  attention  in  England.  It  was 
soon  considered  as  an  indispensable  part  of  the  library  of  every 
statesman  and  private  gentleman.  It  invigorated  the  ambition  of 
students,  and  relieved  them  at  once  from  many  of  the  discourage- 
ments and  difficulties,  which  previously  embarrassed  every  step  of 
their  progress.  There  are  lawyers  yet  living,  who  can  attest  the 
prodigious  change,  which  it  once  produced  in  our  country.  Law 
was  no  longer  considered  a  dry  and  sterile  study.  It  at  once 
became  fashionable  ;  and  this  circumstance,  combining  with  the 
nature  of  our  political  institutions,  (which  make  a  legal  education, 
if  not  a  prerequisite,  at  least  a  very  important  qualification,  for 
political  distinction  and  public  office,)  has  contributed  in  a  very 
high  degree  to  that  great  increase  of  the  bar,  and  that  ascendency 
in  society,  which  distinguish  the  profession,  in  this,  more  than  in 
any  other  country. 

It  was  almost  impossible,  that  such  a  strong  excitement  should 
not  awaken  the  ardor  of  other  gentlemen  of  juridical  learning  and 
leisure,  to  follow  out  into  its  regular  details  a  design,  which  had 
been  so  nobly  conceived  and  executed  by  the  illustrious  commen- 
tator. Accordingly,  there  has  been  a  larger  number  of  treatises  on 
the  leading  topics  of  the  common  law  produced  within  the  last 
half  century,  than  in  all  preceding  time.  And  these  treatises  are, 
in  general,  distinguished  by  a  scientific  distribution,  exact  method, 
propriety  of  style,  and  clear  exposition  of  principles  and  authorities, 
which  are  rarely  to  be  found  in  any  of  our  older  juridical  essays  or 
dissertations.  In  fact,  the  bulk  of  former  elementary  works  was 
little  more  than  a  collection  of  decisions  under  general  heads, 
without  any  successful  attempt  to  systematize  the  matter,  or  subject 
it  to  a  critical  analysis.  Among  the  most  striking  exceptions  to 
this  remark  (for  some  exceptions  exist)  on  the  civil  side,  are  the 
law  tracts  of  Lord  Bacon,  the  profound,  but  imperfect  treatises  of 
Lord  Chief  Baron  Gilbert,  the  ingenious  sketch  of  the  Law  of 
Tenures  by  Sir  Martin  Wright,  and  the  brief,  but  very  exact  treatise 
on  Equity,  attributed  to  Mr.  Ballow ;  and,  on  the  criminal  side,  the 
very  learned  and  authoritative  works  of  Lord  Hale,  the  copious 
digest  of  Mr.  Serjeant  Hawkins,  and  the  truly  admirable  discourses 
of  Sir  Michael  Foster.  We  forbear  to  speak  at  present  of 
Comyn's  Digest,  intending  hereafter  to  notice  it  in  another  place. 

Among  the  modern  works,  of  which  we  have  been  speaking, 
there  are  not  a  few  on  subjects  of  the  very  first  importance,  and  of 
almost  daily  occurrence  in  practice,  for  exact  information  in  which 


232  REVIEWS. 

the  student  would  have  searched  in  vain  in  the  abridgments  and 
treatises  of  former  ages.  Where,  for  instance,  shall  we  look  for  a 
work,  like  Mr.  Fearne's  Essay  on  Contingent  Remainders  and 
Executory  Devises?  This  subject,  which  constituted  one  of  the 
most  obscure,  and  must  for  ever  remain  one  of  the  most  intricate 
titles  of  the  common  law,  had  been  already  sketched  out  by  the 
masterly  hand  of  Lord  Chief  Baron  Gilbert ;  *  but,  like  all  his  other 
writings,  it  was  left  in  a  detached  and  imperfect  shape.  It  was 
reserved  for  .Mr.  Fearne  to  honor  the  profession  by  a  treatise  so 
profound  and  accurate,  that  it  became  the  guide  of  the  ablest 
lawyers  ;  yet  so  luminous  in  method  and  explanations,  that  it  is  level 
to  the  capacity  of  every  attentive  student.  He  has,  in  fact,  ex- 
hausted the  subject  ;  and  this  chef  d'ouvre  will  for  ever  remain  a 
monument  of  his  skill,  acuteness,  and  research.  All,  that  the  most 
accomplished  lawyer  can  reasonably  hope,  is  to  add  a  commentary  of 
new  cases  and  principles,  as  they  arise,  without  venturing  to  touch 
the  sacred  fabric  of  his  master.  The  treatise  of  Lord  Redesdale  on 
Pleadings  in  Chancery  is  of  the  same  masterly  and  original  char- 
acter. It  has  traced  out  the  nature  and  extent  of  the  jurisdiction 
and  practice  of  courts  of  chancery  with  so  much  brevity,  perspi- 
cuity,  and  analytical  exactness,  that  probably  to  this,  more  than  any 
other  work,  we  owe  some  of  the  most  valuable  improvements  in 
the  principles,  as  well  as  the  proceedings,  which  regulate  the  ad- 
ministration of  equity.  Later  works  on  the  same  subject  (such  as 
Mr.  Cooper's)  have  added  much  valuable  matter,  founded  on 
recent  decisions  ;  but  the  basis  of  these,  as  well  as  of  all  future 
works,  must  rest  on  the  solid  foundations,  laid  by  the  noble  Chan- 
cellor. Lord  Eldon  pronounced  its  eulogy  in  his  best  manner, 
when  he  declared,  that  "it  is  a  wonderful  effort  to  collect  what  is 
deduced  from  authorities,  speaking  so  little  what  is  clear,  that  the 
surprise  is  not  from  the  difficulty  of  understanding  all  he  has  said, 
but  that  so  much  can  be  understood." 

There  are  many  other  treatises  upon  particular  titles  of  the  law, 
which  might  properly  be  taken  notice  of  in  this  place,  in  vindication 
of  the  opinion  we  have  expressed  :  but  it  is  beside  our  present 
purpose  to  analyze  the  merits  of  juridical  authors.  We  cannot, 
however,  close  these  brief  remarks,  without  calling  the  attention  of 
our  readers  to  the  very  excellent  treatises  of  Mr.  Park  and  Mr. 
Marshall  on  Insurance,  which    have  done  so  much  towards  giving  a 

*  See  Bacon's  Abridgment,  Guillim's  Edition,  title,  Remainder  and  Reversion. 


Hoffman's  course  of  legal  study.        233 

scientific  cast  to  doctrines  so  recently  incorporated  into  the  common 
law.  Their  merit  is  unquestionably  of  a  very  high  order  ;  and  yet, 
probably,  the  most  perfect  theoretical  work  on  Insurance  is  that  of 
the  learned  Emerigon,  which  (strange  to  tell)  has  never  been  trans- 
lated, although  we  have  been  almost  overrun  with  transfusions  from 
German  and  French  sciolists  by  the  enterprise  or  selfishness  of 
English  booksellers.  We  trust,  that  the  time  is  not  far  distant, 
when  Pothier,  and  Emerigon,  and  Valin  will  be  accessible  in  our 
native  tongue  to  every  lawyer,  and  will  be  as  familiarly  known  to 
them,  as  they  now  are  to  the  jurists  of  continental  Europe. 

It  has  been  doubted  by  some  persons,  whether  the  present  facili- 
ties in  the  study  of  law  have  a  tendency  to  make  as  profound  and 
accurate  lawyers,  as  the  old  dry  and  desultory  course.  It  is  sup- 
posed, that  the  comparative  ease,  with  which  the  student  may  now 
advance  into  the  most  intricate  doctrines,  impairs,  if  it  does  not 
extinguish,  that  ardor  of  pursuit,  which  distinguished  and  disci- 
plined the  lawyers  of  the  black-lettered  times.  For  ourselves,  we 
do  not  perceive  the  slightest  foundation  for  the  opinion,  and  we 
deem  it  radically  erroneous.  It  might  as  well  be  contended,  that 
turnpikes  through  every  part  of  a  thickly  settled  country  have  a  ten- 
dency to  obliterate  the  knowledge  of  its  surface  or  its  cities.  It  is 
true,  that  thereby  the  old  roads  are  less  known  and  less  travelled ; 
but  who  can  doubt,  that  by  such  means  the  facility  of  intercourse, 
and  the  interchange  of  every  thing  important  in  the  commerce  of  life, 
are  greatly  augmented,  and  that  public  improvements  circulate  with 
tenfold  rapidity  and  force  ?  Nor  is  it  very  easy  to  perceive,  how  any 
particular  science  can  be  injuriously  affected  by  the  thorough  devel- 
opment of  its  principles  and  practice.  If  the  lucubrations  of  twenty 
years  were  necessary  in  former  times,  (as  Fortescue  informs  us 
they  were,)  to  acquire  a  competent  knowledge  of  the  law  for  or- 
dinary practice ;  and  if  the  whole  of  that  mass  can,  by  modern 
helps,  be  mastered  in  half  that  period,  it  is  certainly  so  much  time 
gained  in  the  business  of  life  ;  and  time,  in  the  science  of  law,  as 
well  as  in  almost  every  thing  else,  is  of  incalculable  importance. 
The  modern  works  do  not  teach  the  law  in  any  new  and  superficial 
manner.  There  is  no  royal  road  to  this,  any  more  than  to  the 
science  of  mathematics.  But  the  principles  are  now  more  closely 
investigated,  the  problems  more  fully  enunciated,  and  the  bounda- 
ries between  the  known  and  unknown  more  exactly  defined.  In- 
stead of  sparse  and  scattered  maxims,  we  have  regular  systems,  built 
up  with  general   symmetry  of  parts  ;  and  the  necessary  investiga- 

30 


v);j  1  REVIEWS. 

tions  in  new  and  difficult  cases  are  conducted  with  more  safety, 
because  they  are  founded  on  inductions  from  rules  better  established 
and  more  exactly  limited.     Yet,  with  all  these  advantages,  to  be- 
come an  eminent  lawyer  is  now  a  task  of  vast  labor  and  difficulty. 
The  business  of  the  profession   has  extended  itself,  as  we  have 
already  intimated,  incalculably,  both  in  quantity  and  variety.     The 
most  diligent  study  and  practice  of  a  long  life  are  scarcely  sufficient 
to  place  any  gentleman  beyond  the  necessity  of  continual  exertions 
to  keep  pace  with  the  current  of  new  opinions  and  doctrines.     It 
is  true,  that,  in  the  humbler  walks  of  the  profession,  men  of  feeble 
talents  and  acquirements  may  now  obtain  a  maintenance,  and  some- 
times, perhaps,  accumulate  a  fortune  ;  but  this  is  no  more  than  what 
the   experience  of  all  ages  has  shown.     There  have  always  been 
obscure  attorneys,  whose  industry,  or  cunning,  or  patronage  has 
given  them  the  command  of  that  portion  of  business,  which  is  not 
without  profit,  if  it  be  not  attended  with  honor.     But  the  sphere  of 
professional  activity  is  now  greatly  enlarged  ;    and  talents  and  ac- 
quirements are  more  easily  measured,  since   the   mysteries  of  the 
science  are  equally  accessible  to  all  ;  and  little  room  is  now  left  in 
the  obscurities  of  a  barbarous  language  for  imaginary  excellence,  or 
for  the  concealment  of  quackery  in  the  repetition  of  a  technical 
jargon.     That  some  titles  of  the  common  law  are  not  as  well  un- 
derstood, as  in  former  times,  may  be  safely  admitted  ;    and  it  is 
because   they  are  either  obsolete,  or  their  relative   importance  is 
greatly  diminished.     But  as  to  all  the  law  in  modern  practical  use, 
we  are  distinctly  of  opinion,  that  the  science  is  better  understood 
than  in  any  former  age.     A   philosophical  spirit  of  investigation 
now  pervades  the  bar  and  the  bench,  and  we  are  freed  from  the 
blind  pedantry  and  technical  quibbles  of  the  old  schools.     Many  of 
the  doctrines  relative  to  the  feudal  tenures,  such  as  reliefs,  premier 
seisin,  escuage,  chivalry,  villanage,  grand  sergeanty,  homage,  frank 
marriage,  profession,  attaints,  and  others  of  a  similar  nature,  are 
now  very  little  known  ;  but,  surely,  it  is  not  to  be  inferred,  because 
subjects  so  utterly  insignificant   have   sunk  into  obscurity,  that  the 
law  has  lost  its  vigor,  or  the  profession  lack  learning.     Probably 
few,  if  any,  lawyers  in  our  country  are  intimately  acquainted   with 
the  law  of  copyholds  and  advowsons  ;  yet  it  would  be  strange  to 
assert,  that  the  want  of  such  knowledge  was  a  gross  defect  in  pro- 
fessional  education,  when  the   subject-matter,  upon   which  it  can 
operate,  has  no  existence  in  the  United  States. 


Hoffman's  course  of  legal  study.       235 

The  same  remarks  are  in  a  good  degree  applicable  to  real  ac- 
tions, with  all  their  accompaniments  of  process,  essoins,  aid  prayers, 
vouchers,  receit,  &c.  The  irresistible  tide  of  time  has  swept  away 
the  actions  of  assize,  the  writs  of  aiel,  besaiel,  and  mort  d'ancestor, 
cessavit,  quo  jure,  ne  injuste  vexes,  de  rationabilibus  divisis,  secta 
ad  molendinum,  nuper  obiit,  quod  permittat,  and  the  trial  by  bat- 
tle ;  and  though,  in  our  own  state,  writs  of  entry,  formedon,  and 
right  still  exist,  yet  they  have  been  moulded  into  so  simple  a  form, 
that  most  of  the  ancient  peculiarities  are  utterly  extinct ;  *  and  in 
England,  as  well  as  in  most  of  the  states  of  the  Union,  they 
are  gone  with  the  years  beyond  the  flood,  and  the  action  of  eject- 
ment has  almost  universally  superseded  all  real  actions.  It  is,  per- 
haps, just  matter  of  regret,  that  real  actions  have  so  entirely  sunk 
into  disuse ;  since  many  doctrines  applicable  to  modern  remedies 
can  scarcely  be  thoroughly  understood,  without  reference  to  this 
department  of  antiquated  learning.  Many  principles  in  every  sys- 
tem of  municipal  law  must  be  purely  technical,  and  sometimes  of 
arbitrary  regulation  ;  and  the  reason  of  them  may  be  lost,  long 
before  the  principles  themselves  disappear  in  practice.  As  long 
as  such  principles  continue  to  exist,  it  is  important  to  preserve  the 
knowledge  of  the  original  reasons,  on  which  they  are  founded,  and 
the  limits,  which  regulate  their  application.  An  instance  illus- 
trative of  these  remarks  occurred  in  the  modern  case  of  Taylor  vs. 
Horde  (1  Burr.  R.  60.)  It  there  became  material  to  ascertain  the 
exact  nature  of  disseisins  in  the  ancient  law.  Lord  Mansfield  on 
that  occasion  said,  "  The  precise  definition  of  what  constituted  a 
disseisin,  which  made  the  disseisor  the  tenant  to  the  demandant's 
precipe,  though  the  right  owner's  entry  was  not  taken  away,  was 
once  well  known,  but  it  is  not  now  to  be  found.  The  more  we 
read,  unless  we  are  careful  to  distinguish,  the  more  we  shall  be 
confounded." — We  have  heard  it  questioned  by  a  late  learned 
judge,  whether  Lord  Mansfield  had  gone  to  the  bottom  of  this  doc- 
trine. But,  however  this  may  be,  the  case  abundantly  instructs  us, 
how  many  distressing  doubts  may  arise  from  the  partial  eclipse  of 

*  We  take  this  occasion  to  correct  an  error,  into  which  Mr.  Hoffman  has  inad- 
vertently fallen,  in  supposing,  (p.  144,)  that  real  actions  are  in  daily  use  in  Mas- 
sachusetts, with  all  their  concomitants  of  voucher,  counterplea  of  voucher,  &c.  &c. 
Real  actions  are  here  in  use,  and  with  them  all  those  pleadings  and  proceedings, 
which  are  necessary  for  the  furtherance  of  justice  between  the  parties.  But  all 
the  peculiarities  of  process,  essoins,  and  vouchers,  and  counterpleas,  &c,  are  obso- 
lete, and  superseded  by  a  great  simplicity  of  proceeding,  greater,  perhaps,  than 
attends  even  the  formal  proceedings  in  ejectments. 


236  REVIEWS. 

lights  once   so  familiarly   known.      It  ought   not,  however,  to  be 
forgotten,  that  real  actions  have  not  gone  into  disuse  by  any  sudden 
and  arbitrary  abolition,  but  from  the  intricacies  and  delays  in  the 
ancient  proceedings   therein,  and  from  their  unfitness  for  a  conven- 
ient investigation  of  numerous  questions  arising  from  the  complicated 
conveyances  of  modern  times.     For  example,  it  is  often  a  question 
of  serious  difficulty  to  decide,  whether  an  estate  be  a  fee  simple, 
a  fee  tail,  or  an  estate  for  life :  the  limitations  of  estates  are  some- 
times very  numerous,  and  the  cases,  in  which  they  have  lapsed,  and 
the  links  of  descent  and  heirship,  are  often  imperfectly  known.     In 
all  these  cases  there  must  be  very  great  embarrassment  thrown  in 
the  way  of  a  demandant  in  a  real   action,  and  he  may  be  turned 
round  several  times  before  he  can  obtain  a  decision  upon  his  title. 
He  may  successively  be  driven  from  writs  of  entry  of  every  degree 
to  a  formedon,  and  even  to  a  writ  of  right;  and,  after  all,  he  may 
be  defeated  by  a  mistake  in  the  pleadings,  (which  he  will  not  be 
allowed  to  amend,)  having  little  or  nothing  to  do  with  the  merits  of 
his  cause.     So  that,  if  something  be  lost  by  the  disuse  of  real  ac- 
tions, much  (at  least  in  England)  has  probably  been  gained  in  sub- 
stantial justice  and  convenience,  and  even  certainty  of  remedy. 

It  has  been  also  suggested,  that  special  pleading  has  suffered 
greatly  by  the  modern  changes  in  the  study  of  law  ;  and  that  it 
is  every  day  less  and  less  understood.  If  this  were  true,  it  might 
be  satisfactorily  accounted  for  upon  grounds  altogether  distinct  from 
the  decline  of  professional  learning.  In  most  of  the  actions  in 
modern  use,  special  pleading  is  rarely  necessary  or  advisable. 
When  the  action  of  assumpsit  was  first  introduced,  special  pleas 
and  issues  were  very  common  ;  but  for  more  than  a  century  they 
have  disappeared  in  practice ;  and  almost  every  defence,  except 
that  of  the  statute  of  limitations,  is  now  determined  under  the  gen- 
eral issue.  With  the  exception  above  stated,  a  special  plea  is 
never  heard  of  in  actions  on  promissory  notes,  bills  of  exchange, 
policies  of  insurance,  nor,  indeed,  any  other  simple  contracts  ;  and 
these  form  by  far  the  largest  portion  of  the  business,  which  at  pres- 
ent occupies  the  attention  of  courts  of  justice.  In  actions,  too,  for 
the  recovery  of  real  estate,  whether  the  ancient  real  actions,  or  the 
modern  action  of  ejectment,  almost  every  defence  is  tried  under 
the  general  issue.  The  same  remark  applies  to  trover,  and,  in 
general,  all  other  actions  on  the  case ;  and,  with  the  exception  of 
actions  of  debt,  covenant,  trespass,  slander,  and  replevin,  which 
are,  comparatively  speaking,  infrequent,  special  pleading  is  entirely 


Hoffman's  course  of  legal  study.       237 

out  of  use.  Even  in  these  actions,  by  the  laxity  of  practice  and 
the  provisions  of  statutes,  the  use  of  it  has  been  very  much  abridged. 
These  considerations  disclose  a  sufficient  reason,  why  special 
pleading  may  be  less  regarded  in  practice,  than  in  former  times,  and 
why  its  relative  value  may  not  always  be  duly  appreciated  in  the 
profession.  It  is  unquestionably  a  branch  of  learning  of  vast,  nay, 
of  indispensable,  importance  to  every  lawyer.  Without  an  accurate 
know  ledge  of  its  principles,  it  is  impossible  to  frame  actions  or  de- 
clarations for  a  variety  of  cases  arising  in  common  practice ;  and, 
if  the  foundations  are  not  well  laid,  the  superstructure  cannot  stand. 
It  is  the  best,  and  perhaps  the  only,  method  to  obtain  a  thorough  and 
exact  knowledge  of  the  proper  boundaries  of  actions,  upon  which, 
frequently,  the  success  or  loss  of  a  cause  may  ultimately  depend. 
Lord  Ashburton,  in  his  celebrated  letter  to  a  student  of  law,  ob- 
serves, "  It  is  usual  to  acquire  some  insight  into  real  business  under 
an  eminent  special  pleader,  previous  to  actual  practice  at  the  bar. 
This  idea  I  beg  leave  strongly  to  second  ;  and,  indeed,  I  have  known 
few  great  men,  who  have  not  possessed  this  advantage."  Nor 
should  it  be  forgotten,  that  special  pleading  has  a  most  salutary 
effect  in  disciplining  the  mind  for  an  accurate  investigation  of  prin- 
ciples, and  accustoming  it,  by  a  sort  of  intellectual  chemistry,  to  the 
most  subtile  analysis  and  combinations.  It  has  been  truly  asserted 
by  Lord  Mansfield,  that  "The  substantial  rules  of  special  pleading 
are  founded  in  strong  sense  and  the  soundest  and  closest  logic ;  and 
so  appear,  when  well  understood  and  explained  ;  though,  by  being 
misunderstood  and  misapplied,  they  are  often  made  use  of  as  instru- 
ments of  chicane."  We  remember  to  have  heard  the  late  Chief 
Justice  Parsons  (who  was  an  excellent  special  pleader)  declare, 
that,  in  knotty  and  difficult  cases,  he  always  found  more  certain  and 
satisfactory  results  in  trying  them  by  the  rules  of  special  pleading, 
than  by  any  other  method.  Sir  William  Jones,  in  his  preface  to 
the  speeches  of  Isaeus,  has  beautifully  illustrated  the  same  thought. 
"Our  science,"  says  he,  "of  special  pleading  is  an  excellent  logic  ; 
it  is  admirably  calculated  for  the  purpose  of  analyzing  a  cause,  of 
extracting,  like  the  roots  of  an  equation,  the  true  points  in  dispute, 
and  referring  them,  with  all  imaginable  simplicity,  to  the  court,  or 
the  jury.  It  is  reducible  to  the  strictest  rules  of  pure  dialectic  ; 
and,  if  it  were  scientifically  taught  in  our  public  seminaries  of 
learning,  would  fix  the  attention,  give  a  habit  of  reasoning  closely, 
quicken  the  apprehension,  and  invigorate  the  understanding,  as 
effectually  as   the  famed   peripatetic    system,  which,  how  ingen- 


238  REVIEWS. 

ious  and  subtile  soever,  is  not  so  honorable,  so  laudable,  or  so 
profitable,  as  the  science,  in  which  Littleton  exhorts  his  sons  to 
employ  their  courage  and  care."  Such  commendation  supersedes 
the  necessity  of  all  farther  discussion  of  the  importance  of  plead- 
ing. 

But  we  doubt  the  fact,  that  special  pleading  is  not  as  well  un- 
derstood, as  in  former  times.  On  the  contrary,  we  incline  to 
believe,  that  by  eminent  lawyers  its  principles  are  now  more  fully 
comprehended,  and  more  philosophically  examined,  than  in  any 
preceding  period.  The  age  of  scholastic  quibbling  and  petty 
subtilty  has  passed  away,  and  the  quaint  trilling,  which  disfigured 
and  disgraced  the  science,  is  no  longer  in  fashion.  Special  plead- 
ing is  now  applied  to  its  original  and  proper  purpose,  the  attain- 
ment of  substantial  justice,  and  the  introduction  of  certainty  of 
remedy.  The  good  sense  and  sound  logic  of  modern  limes  has 
substituted,  for  the  artificial  pedantry  and  narrow  maxims  of  the 
dark  aoes  of  the  law,  rules,  which  commend  themselves  to  all  men, 
by  their  intrinsic  propriety  and  excellence  for  deciding  contested 
rights.  The  best  ancient  treatise  on  the  subject  is  Mr.  Euer's 
Doctrina  Placitandi,  a  book,  which  Lord  Chief  Justice  Willes 
pronounced,  in  his  time,  to  contain  more  law  and  learning  than 
any  other  book  he  knew7  (2  Wils.  R.  88.)  ;  yet  what  is  this, 
when  compared  with  the  finished  elementary  and  practical  treatises 
of  Mr.  Lawes  or  Mr.  Chitty?  It  were,  indeed,  desirable,  that  mod- 
ern pleaders  should  endeavour  to  imitate,  more  generally,  the 
pointed  brevity  and  precision  of  Rastall's  Entries,  and  waste  fewer 
words  in  their  drafts  of  declarations,  which, 

"  Like  a  wounded  snake,  drag  their  slow  length  along." 

It  might  not  be  useless  for  them  to  consider,  that  the  great  aim 
ought  to  be,  not  how  much,  but  how  little,  may  be  inserted  with 
professional  safety.  Here,  at  least,  the  study  of  the  ancients 
would  amply  repay  all  their  toil,  and  subserve,  essentially,  the 
public  interests.  There  is  certainly  some  danger,  that  the  current 
of  public  opinion,  aided  by  legislative  enactments,  and  not  a  little 
accelerated  by  a  distaste  for  the  prolixity  of  modern  pleading,  may 
bring  the  science  itself  into  disrepute  and  neglect.  If  such  an 
event  should  happen,  it  will  be  matter  of  most  serious  regret.  -We 
hope,  that  the  few  observations,  which  we  have  hazarded,  may 
attract  the  attention  of  the  rising  generation,  and  call  forth  abler 
pens  in  the  vindication  and  support  of  its  principles  and  practice. 


Hoffman's  course  of  legal  study.  239 

There  are  some  other  topics,  upon  which  it  was  our  intention 
to  trouble  our  professional  readers  with  a  few  observations,  in  proof 
of  the  opinion,  that  the  law,  as  a  science,  never  was  so  well  under- 
stood, nor  so  well  taught,  as  at  the  present  period,  and  yet  that  a 
profound  and  comprehensive  knowledge  of  it  never  was  of  more 
difficult  attainment.  We  may,  however,  safely  pass  from  general 
reasoning,  and  appeal  to  facts  within  the  reach  of  every  profes- 
sional gentleman.  In  our  own  country  the  advancement  of  the 
knowledge  of  the  science  has  been  truly  wonderful.  The  bar  and 
the  benches  of  almost  every  state  in  the  Union  have,  within  the 
last  twenty  years,  very  strikingly  improved.  There  are  lawyers 
and  judges  amongst  us,  who  would  sustain  the  weight  and  dignity 
of  Westminster  Hall.  And  some  of  our  reports  exhibit  arguments 
and  opinions,  which,  for  propriety,  and  force,  and  logic,  and  acute- 
ness,  and  erudition,  have  not  been  excelled  in  the  proudest  days  of 
the  law*.  This  rapid  improvement  has,  without  doubt,  been  greatly 
aided  by  the  invigorating  influence  of  the  modern  treatises  in 
almost  every  branch  of  law ;  but  it  has  also  owed  much  to  the 
increased  diligence,  which  a  lofty  ambition  of  excellence  has  stimu- 
lated among  the  master  spirits  of  the  profession. 

But  it  is  time  for  us  to  call  the  attention  of  our  readers  to  the 
immediate  subject  of  this  article.  Mr.  Hoffman  has  published  a 
Course  of  Legal  Study,  which  he  modestly  addresses  to  students, 
but  which  is  well  worthy  the  perusal  of  every  gentleman  of  the  bar. 
Many  works  have  been  heretofore  written,  professedly  for  the  di- 
rection of  persons  engaged  in  the  study  of  the  law  ;  but,  for  the 
most  part,  these  works  have,  in  a  didactic  form,  laid  down  elemen- 
tary precepts  for  the  moral  conduct,  the  preparatory  attainments, 
or  the  style  of  elocution  and  oratory,  proper  for  an  eminent  advo- 
cate. Some,  indeed,  are  little  more  than  a  distillation  from  Quinc- 
tilian's  Institutes  and  Cicero's  Orator,  without  preserving  the 
pungent  essence  or  eloquence  of  the  originals.  Mr.  Hoffman's 
work,  on  the  contrary,  is  almost  entirely  practical ;  and  it  contains 
a  complete  course  of  legal  study,  with  a  catalogue  of  the  principal 
books  to  be  consulted  or  read  under  all  the  titles  of  the  law.  The 
introduction  is  written  with  a  good  deal  of  force  and  good  taste,  and 
in  a  tone  of  strong  and  sensible  argumentation.  In  point  both  of 
matter  and  manner,  it  is  highly  creditable  to  the  talents  and  ac- 
quirements of  the  author. 


240  REVIEWS. 

The  general  course  of  study,  proposed  by  Mr.  Hoffman,  is 
summed  up  in  the  following  general  syllabus  — 

"  I.  Moral  and  Political  Philosophy. 

"  II.  The  Elementary  and  Constitutional  Principles  of  the  Muni- 
cipal Law  of  England  ;    and  herein, 

"  1st.  Of  the  Feudal  Law. 

"  2d.  The  Institutes  of  the  Municipal  Law  generally. 

"  3d.  Of  the  Origin  and  Progress  of  the  Common  Law. 
"  III.  The  Law  of  Real  Rights  and  Krai  Remedies. 
"  IV.  The  Law  of  Personal  Rights  and  Personal  Remedies. 
"  V.  The  Law  of  Equity. 
"  VI.  The  Lex  Mercatoria. 
"  VII.  The  Law  of  Crimes  and  Punishments. 
"VIII.  The  Law  of  Nations. 
"  IX.  The  Maritime  and  Admiralty  Law. 
"  X.  The  Civil  or  Roman  Law. 

"  XI.  The  Constitution  and  Laws  of  the  United  States  of  America. 
"  XII.  The  Constitution  and   Laws  of  the  several   States  of  the 
Union. 

"  XIII.  Political  Economy."     p.  32. 

This  is  followed  by  a  particular  syllabus  under  every  title  of  the 
general  syllabus,  in  which  are  collected  the  best  works  on  every 
successive  subject  belonging  to  the  beads,  under  which  they  are 
arranged.  Connected  with  these  beads  is  a  series  of  notes,  or 
perpetual  commentary  upon  the  character  and  relative  value  ol  the 
authors,  whose  works  are  cited,  or  the  history  and  relative  impor- 
tance of  the  topics,  which  they  discuss,  interspersed  with  many 
judicious  observations  of  a  more  general  nature,  which  exhibit  to 
great  advantage  the  liberality,  sound  judgment,  and  juridical  know- 
ledge of  the  author.  As  a  specimen  of  the  style  and  spirit  of  the 
work,  we  subjoin  the  note  on  the  reading  of  reports,  and  particu- 
larly of  leading  cases. 

These  observations  of  Mr.  Hoffman  are  perfectly  practical,  and, 
for  the  most  part,  accurate  and  just.  In  respect  to  the  praise 
bestowed  on  Mr.  Viner's  Abridgment,  we  are  constrained  to  differ 
from  the  learned  gentleman.  We  are  far  from  thinking  it  the 
safest  abridgment  for  reference.  It  is  a  very  irregular  fabric,  built 
up  on  the  basis  of  Rolle's  Abridgment,  with  an  incorporation  ol 
the  principal  matter  of  Fitzherbert,  and  Brook,  and  other  old 
abridgers.      It  abounds  with  inaccuracies   and  repetitions;    and  it 


Hoffman's  course  of  legal  study.       241 

is  quite  obvious,  that  the  author  more  frequently  consulted  the 
works  of  other  abridgers,  than  the  original  reports,  to  abbreviate 
and  digest  for  himself.  We  agree,  however,  with  Mr.  Hargrave, 
(Co.  Litt.  9.  a.  note  3.)  that  "  Notwithstanding  all  its  defects  and 
inaccuracies,  it  must  be  allowed  to  be  a  necessary  part  of  every 
lawyer's  library.  It  is,  indeed,  a  most  useful  compilation,  and 
would  have  been  infinitely  more  so,  if  the  author  had  been  less 
singular  and  more  nice  in  his  arrangement  and  method,  and  more 
studious  in  avoiding  repetitions."  Bacon's  (or,  more  properly, 
Gilbert's)  Abridgment  is  more  full  in  the  development  of  princi- 
ples and  the  statement  of  cases  ;  and,  in  every  respect  but  copi- 
ousness, is  a  superior  production.  It  is  incomplete  ;  but  this  was 
the  hard  fate  of  all  the  writings  of  the  most  learned  author,  which 
were  sent  into  the  literary  world  with  all  their  original  imperfections 
on  their  head.  For  ourselves,  we  confess,  that  in  our  opinion 
every  other  abridgment  suffers  greatly  in  comparison  with  the 
Digest  of  Lord  Chief  Baron  Comyns.  For  succinctness  and 
brevity,  for  exact  method  and  arrangement,  for  perspicuity  and 
accuracy,  for  copiousness  in  principles  and  illustrations,  and  for 
comprehensive  analysis,  it  stands  unrivalled  in  the  annals  of  the  law. 
On  one  occasion,  Lord  Kenyon  (Pasley  v.  Freeman,  3  T.  R.  51, 
64.)  said,  "  I  find  it  laid  down  by  the  Lord  C.  B.  Comyns,  &c.  He 
has  not,  indeed,  cited  any  authority  for  his  opinion  ;  but  his  opinion 
alone  is  of  great  authority,  since  he  was  considered  by  his  contem- 
poraries, as  the  most  able  lawyer  in  Westminster  Hall."  In  some 
other  more  recent  cases,  the  court  of  King's  Bench  have  proceeded 
to  adjudicate  some  very  important  questions,  upon  the  sole  authority 
of  his  Digest,*  an  honor,  which,  we  believe,  has  never  been  con- 
ceded to  any  other  compiler.  It  has  frequently  occured  to  us,  that 
our  professional  brethren  of  the  South  did  not  sufficiently  appre- 
ciate the  merits  of  this  work.  They  appear  to  be  devoted  to 
Bacon's  Abridgment,  and  pass  over  Comyns's  Digest,  as  a  book 
merely  of  occasional  reference,  entitled  to  little  either  of  praise  or 
blame.     How,  otherwise,  can  we  account  for  Mr.  Hoffman's  omis- 

*  We  take  this  opportunity  to  enter  our  protest  against  that  book-making  spirit, 
which  has  disfigured  all  the  modern  editions  of  this  incomparable  work.  The 
original  edition  in  folio  (1762)  is  far  superior  to  all  the  later  editions.  These  have 
the  addition  of  the  modern  cases,  it  is  true  ;  but  they  consist  of  the  marginal 
notes  of  the  reporters,  thrust  into  the  text  without  order  or  propriety,  and  destroy 
its  symmetry  and  connexion.  A  supplement  of  modern  cases  and  principles  upon 
the  plan  of  Comyns's  Digest,  in  a  distinct  work,  would  be  an  invaluable  present 
to  the  profession. 

31 


242  REVIEWS. 

sion,  under  the  article  of  pleading,  to  recommend  the  admirable 
title,  Pleader,  in  the  Digest,  a  title,  which  has  collected  and  ex- 
hausted, in  a  most  scientific  order,  the  whole  principles  of  the 
science.  The  title,  "  Pleas  and  Pleadings,"  in  Bacon's  Abridg- 
ment, is  an  excellent  sketch  ;  but  it  is  but  a  sketch,  and,  compared 
with  the  title  of  Comyns  just  mentioned,  is  but  twilight  to  the 
meridian  day.  AVe  would  respectfully  ask  the  attention  of  Mr. 
Hoffman,  and  of  southern  lawyers  in  general,  to  the  following 
observations  of  Mr.  Hargrave  :  "  The  whole  of  Lord  Chief 
Baron  Comyns's  work  is  equally  remarkable  for  its  great  variety  of 
matter,  its  compendious  and  accurate  expressions,  and  the  excel- 
lence of  its  methodical  distribution  ;  but  the  title,  '  Pleader,' 
seems  to  have  been  the  author's  favorite  one,  and  that  in  which  he 
principally  exerted  himself."     (Co.  Litt.  17.  a.  note  1.) 

The  remark,  too,  of  Mr.  Hoffman,  that  "  The  books  of  reports 
contain  the  law  in  the  precise  phraseology,  in  which  it  was  admin- 
istered by  the  judges,"  requires  some  qualification.  With  the 
exception  of  the  Reports  of  Plowden,  Coke,  and  Vaughan,  and  a 
very  few7  great  cases  in  other  Reports,  the  remark  can  scarcely  be 
said  to  be  true  of  any  Reporter,  before  the  time  of  Sir  James  Bur- 
row. There  are  some  other  unimportant  particulars,  in  which  we 
differ  from  Mr.  Hoffman  ;  but,  with  these  trifling  exceptions,  we 
entirely  agree  in  the  opinions  of  Mr.  Hoffman,  as  to  the  importance 
and  utility  of  reading  the  original  Reports.  We  presume,  that  the 
omission  to  notice  the  Massachusetts  Reports,  in  company  with 
Mr.  Johnson's,  Mr.  Binney's,  and  Messrs.  Henning  and  Munford's, 
was  accidental ;  for,  if  we  do  not  deceive  ourselves,  in  point  of 
learning  and  accuracy  they  yield  to  fewT,  if  any,  in  our  country. 

What  particularly  pleases  us  is  the  enlarged  and  liberal  view, 
with  which  Mr.  Hoffman  recommends  the  student  of  the  common 
law  to  a  full  and  careful  study  of  the  admiralty,  maritime,  and  civil 
law.  If  the  note  on  the  excellence  of  the  civil  law  (p.  254) 
were  not  too  long,  we  should  gladly  insert  it  in  this  place.  We 
commend  it,  however,  as  well  as  his  observations  on  the  law  of 
nations  and  the  admiralty  law*,  most  earnestly,  to  all  those,  who 
aspire  to  eminence  as  statesmen,  or  scholars,  or  lawyers.  To  Mr. 
Hoffman's  list  of  books,  on  these  subjects,  we  beg  leave  to  add 
He';i.eccius's  Elements,  of  the  Civil  Law,  according  to  the  order  of 
the  Institutes  and  the  Pandects,  whom  Sir  James  Mackintosh  has 
not  scrupled  to  pronounce  "  The  best  writer  of  elementary  books. 


Hoffman's  course  of  legal  study.       243 

with  whom  he  is  acquainted  on  any  subject."  *  We  also  recom- 
mend Ferricre's  Uictionnaire  de  Droit  et  de  Pratique,  Calvinus's 
Lexicon  Juridicum,  M.  Dessaules'  Dictionnaire  du  Digeste,  Exton, 
and  Zouch,  and  Spelman  on  the  Admiralty  Jurisdiction,  Cleirac's 
Us  et  Coutumes  de  la  Mer,  Emerigon  Traite  des  Assurances, 
Pothier's  Works,  and  particularly  his  Treatises  on  Maritime  Con- 
tracts, Boucher's  translation  of  the  Consolato  del  Mare,  Peckius 
ad  Rem  Nauticum,  D'Abreu  sur  les  Prises,  and  though  last,  not 
least,  Casaregis's  Discursus  de  Commercio. 

We  must  now  hasten  to  a  close,  although  there  are  some  dis- 
cussions, which  the  perusal  of  Mr.  Hoffman's  work  has  suggested, 
which  we  very  reluctantly  pass  over.  In  quitting  the  work,  we 
have  not  the  slightest  hesitation  to  declare,  that  it  contains  by  far 
the  most  perfect  system  for  the  study  of  the  law,  which  has  ever 
been  offered  to  the  public.  The  writers,  whom  he  recommends, 
are  of  the  very  best  authority  ;  and  his  own  notes  are  composed  in 
a  tone  of  the  most  enlarged  philosophy,  and  abound  in  just  and 
discriminating  criticism,  and  in  precepts  calculated  to  elevate  the 
moral,  as  well  as  intellectual,  character  of  the  profession.  The 
course,  proposed  by  him,  is  very  ample,  and  would  probably  con- 
sume seven  years  of  close  study.  But  much  may  be  omitted, 
where  time  and  opportunity  are  wanting  to  exhaust  it.  We  cor- 
dially recommend  it  to  all  lawyers,  as  a  model  for  the  direction  of 
the  students,  who  may  be  committed  to  their  care  ;  and  we  hazard 
nothing  in  asserting,  that,  if  its  precepts  are  steadily  pursued,  high 
as  the  profession  now  stands  in  our  country,  it  will  attain  a  higher 
elevation,  an  elevation,  which  shall  command  the  reverence  of 
Europe,  and  reflect  back  light  and  glory  upon  the  land  and  the 
law  of  our  forefathers. 

We  have  another  motive,  besides  the  intrinsic  value  of  the  work, 
for  recommending  it  earnestly  to  the  perusal  of  our  readers.  It 
will  demonstrate  to  the  understanding  of  every  discerning  man,  the 
importance,  nay,  the  necessity,  of  the  law-school,  which  the  Gov- 
ernment of  Harvard  College  have,  so  honorably  to  themselves, 
established  at  Cambridge.  No  work  can  sooner  dissipate  the 
common  delusion,  that  the  law  may  be  thoroughly  acquired  in 
the  immethodical,  interrupted,  and  desultory  studies  of  the  office 
of  a  practising  counsellor.     Such   a  situation  is  indispensable  after 

*  Sir  James  Mackintosh's  Introductory  Discourse,  on  the  Study  of  the  Law  of 
Nature  and  Nations,  is  a  most  finished  composition,  abounding  in  all  the  graces 
of  juridical  eloquence,  and  pregnant  with  most  important  and  edifying  learning. 


244  REVIEWS. 

the  student  shall  have  laid  a  foundation  in  elementary  principles, 
under  the  guidance  of  a  learned  and  discreet  lecturer.  He  will 
then  be  prepared  to  reap  the  full  benefits  of  the  practice  of  an 
attorney's  office.  But,  without  such  elementary  instruction,  he  will 
waste  a  great  deal  of  time  in  useless  and  discouraging  efforts  ;  or 
become  a  patient  drudge,  versed  in  the  forms  of  conveyancing  and 
pleading,  but  incapable  of  ascending  to  the  principles,  which  guide 
and  govern  them  ;  or  sink  into  a  listless  indolence  and  inactivity, 
waiting  for  the  arrival  of  the  regular  period  for  his  admission  to 
the  bar,  without  one  qualification  to  justify  the  honor,  which  he 
receives.  One  year  passed  at  the  University,  in  attendance  upon 
the  lectures  of  the  very  respectable  gentleman,  who  has  recently 
been  appointed  to  preside  over  the  law-school  there,  would  lay  a 
foundation  of  solid  learning,  upon  which  our  ingenuous  and  ambi- 
tious youth  might  confidently  hope  to  build  a  fabric  of  professional 
fame,  which  would  carry  them  to  the  first  honors  of  the  bar,  and 
make  them,  on  the  bench,  the  ornaments  of  their  country. 


REVIEW 


OF  THE  LAWS  OF  THE  SEA  WITH  REFERENCE  TO  MARITIME  COMMERCE 
DURING  PEACE  AND  WAR  — FROM  THE  GERMAN  OF  FREDERICK  J.  JACOB- 
SEN,  ADVOCATE,   ALTONA,  1815. 


[First  published  in  the  North  American  Review,  1818.] 

The  Ancients  have  left  us  but  little  on  the  subject  of  commer- 
cial law ;  and  that  little  has  lost  much  of  its  value  in  modern  times. 
It  may,  perhaps,  be  supposed,  that  a  great  deal  has  perished  amidst 
the  ruins  of  the  dark  ages  ;  or  has  been  swallowed  up  in  the 
desolations  of  conquest,  or  the  overwhelming  obliterations  of  time. 
Much  splendid  declamation  has  been  employed  in  describing  the 
maritime  glory  of  the  Phoenicians,  and  the  Cretans,  and  the  Rho- 
dians,  and  the  Egyptians,  and  the  Greeks,  and  the  Carthaginians,  and 
the  Romans.  Without  question,  the  coasts  of  the  Mediterranean 
were,  from  early  times,  inhabited  by  warlike,  enterprising,  and  indus- 
trious races  of  people.  They  had  different  commodities  to  exchange, 
adapted  to  the  natural  and  artificial  wants,  the  necessities  and  the 
luxuries  of  the  different  societies,  into  which  they  were  divided.  It 
was  of  course,  that  ambition  and  enterprise,  the  love  of  wealth,  and 
the  desire  of  gratifying  curiosity,  should  create  an  active  interchange 
of  these  commodities,  both  by  sea  and  land.  The  spirit  of  com- 
merce, once  excited,  is  not  easily  extinguished  or  controlled.  It  is 
a  useful  spirit,  which  imparts  life  and  intelligence  to  the  body 
politic,  increases  the  comforts  and  enjoyments  of  every  class  of 
people,  and  gradually  liberalizes  and  expands  the  mind,  as  well  as 
fosters  the  best  interests  of  humanity.  Many  usages  must  neces- 
sarily grow  up  in  such  a  state  of  things,  where  many  independent 
nations  are  engaged  in  trade  with  each  other ;  which  usages,  at  first 
determined  by  accident,  or  convenience,  or  the  dictates  of  common 
sense,  must  gradually  ripen  into  rights  and  duties,  and  thus  regulate 


246  REVIEWS. 

the  concerns  of  commerce.  It  is  not,  therefore,  to  be  supposed, 
that  the  nations,  of  whom  we  have  spoken,  were  wholly  without 
any  principles  of  maritime  law.  But  there  are  many  reasons  for 
believing,  that  nothing  like  an  enlarged  and  general  system  of  that 
law  was  ever  adopted  by  any  of  them. 

In  the  first  place,  the  business  of  their  commerce  was  extremely 
simple,  their  voyages  were  short,  and  their  shipping  was  adapted  to 
small  cargoes  and  narrow  reaches.  They  were  obliged  to  ply  the 
shores  ;  and  neither  their  interest  nor  their  means,  in  the  then  state  of 
navigation,  allowed  them  to  plan  or  execute  the  complicated  voyages 
of  modern  times.  The  coasting  trade  of  a  single  modern  maritime 
power  is  probably  far  more  extensive,  than  the  whole  trade  of  many 
flourishing  states  of  antiquity  ;  at  least,  the  operations  of  that  trade 
were  far  less  complicated  ;  and  yet  the  coasting  trade  has  given 
rise  to  comparatively  few  of  the  questions  of  modern  maritime  law. 
In  the  next  place,  most  of  the  ancient  governments,  whether 
despotic  or  free,  seem  to  have  devoted  themselves  more  to  the 
profession  of  arms,  and  the  increase  of  their  military  and  naval 
power,  than  to  the  encouragement  of  peaceful  commerce.  In  the 
despotic  governments,  almost  every  thing  was  left  to  the  undefined 
discretion  of  the  sovereign,  who  would  not  easily  be  induced  to 
circumscribe  the  limits  of  his  own  authority.  In  the  free  govern- 
ments, the  jarring  of  discordant  interests,  and  the  impatience  of 
legislative  control,  manifested  by  the  mass  of  the  people,  combined 
with  the  almost  continual  foreign  warfare,  in  which  they  were  en- 
gaged, to  prevent  any  effort  to  systematize  their  civil  polity.  Under 
such  circumstances,  it  is  not  very  probable,  that  any  public  regula- 
tions could  be  framed  in  respect  to  maritime  contracts,  except  in 
some  few  cases  of  extraordinary  occurrence,  or  peculiar  difficulty. 
The  Romans,  indeed,  seem  to  have  been  the  only  people,  who 
attempted  to  methodize  the  principles  even  of  their  municipal  law. 
It  has  been  remarked  by  Dr.  Adam  Smith,  (Wealth  of  Nations, 
B.  5.,  ch.  I.,  part  3.,  art.  2.,)  that  "  Though  the  laws  of  the  Twelve 
Tables  were  many  of  them  copied  from  those  of  some  ancient  Greek 
republics,  yet  law  never  seems  to  have  grown  up  to  be  a  science 
in  any  republic  of  ancient  Greece.  In  Rome,  it  became  a  science 
very  early."  Nor  do  we  recollect,  that  it  ever  has  been  pretended, 
at  least  in  respect  to  maritime  law,  that  any  of  the  ancient  nations, 
except  the  Rhodians,  had  formed  any  thing  like  a  commercial 
code  ;  and  that  the  extent,  as  well  as  the  importance,  of  this  code 
has  been  greatly  overrated,  we  think  there  are  very  strong  reasons 


MARITIME    LAW.  247 

to  believe.  Whatever  was  most  valuable  in  that  code  was,  without 
doubt,  well  known  to  the  Romans  ;  and,  so  far  as  it  suited  their 
own  more  enlarged  commerce,  was  probably  transfused  into  their 
own  jurisprudence.  And  we  shall  hereafter  see,  what  have  been 
the  value  and  extent  of  the  obligations  of  the  Romans  to  the 
Rhodian  Laws  in  this  particular. 

As  to  the  manuscript,  found  in  the  library  of  Francis  Pithou,  a 
celebrated  jurist  of  the  sixteenth  century,  which  was  published, 
first  at  Basle  in  1561  by  Simon  Scardius,  and  afterwards  at  Frank- 
fort in  1596  by  Marquardus  Freer  and  Leunclavius,  as  genuine 
fragments  of  the  Rhodian  Laws,  it  may  be  observed,  that,  if  their 
genuineness  were  completely  established,  they  would  not  increase 
our  veneration  for  the  wisdom,  or  the  commercial  polity  of  the 
nation,  whose  name  they  bear.  But  the  critical  sagacity  of  modern 
civilians  has  not  hesitated  to  reject  these  fragments,  as  more  than 
apocryphal,  as  the  fictions  of  some  jurist,  as  late,  at  least,  as  the 
middle  ages.  It  is  true,  that  they  have  been  silently  quoted  or 
directly  asserted  as  genuine,  by  Cujas,  by  Selden,  Godefroi,  Vin- 
nius,  and  other  eminent  jurists.  Bynkershoek  first  boldly  denied 
their  authenticity ;  the  cautious  and  accomplished  Heineccius 
followed  in  the  same  path  ;  and  their  opinion  has  been  generally 
adopted  by  the  learned  of  the  eighteenth  century.  Rejecting, 
therefore,  as  we  do,  the  Fragments  of  the  Rhodian  Laws,  as  a 
modern  fraud,  there  is  nothing,  which  has  reached  us,  except  the 
codes  and  the  compilations  of  the  Roman  emperors,  which  even 
wears  the  habiliments  of  ancient  maritime  jurisprudence  ;  and  so 
far  are  we  from  thinking,  that  any  thing  material  has  been  lost,  that 
we  consider  the  substance  of  all  ancient  maritime  jurisprudence,  as 
embraced  in  the  titles  of  the  Corpus  Juris  Civilis.  The  circum- 
stances, under  which  the  Roman  codes  were  compiled,  do,  as  we 
think,  fully  justify  these  remarks. 

At  the  period  when  Justinian  meditated  the  great  works,  which 
have  immortalized  his  memory  —  (a  monument  of  fame  more 
desirable  than  all  that  conquest  can  bestow,  and  which  seems  des- 
tined to  endure  to  the  end  of  time) —  the  Roman  empire  had  passed 
through  its  brightest  ages  of  military,  civil,  and  commercial  gran- 
deur. She  had  been  for  centuries  as  renowned  for  her  jurispru- 
dence, as  for  her  arms.  A  succession  of  learned  men  had  adorned 
her  courts,  as  judges  or  as  lawyers,  who  had  left  behind  them  their 
arguments,  opinions,  and  commentaries,  upon  most  of  the  important 
branches  of  her  law.     Besides  these,  there  were  the  honorary  law, 


248  REVIEWS. 

and  edicts  of  her  praetors,  the  plebiscita  and  senatus  consulta  of 
the  days  of  the  republic,  the  imperial  constitutions  and  rescripts  of 
her  emperors,  the  collection  of  the  honorary  law,  or  perpetual  edict 
of  Julian,  and  the  successive  codes  of  Gregorius,  Hermogenes,  and 
Theodosius.  From  these  materials  were  composed  the  Institutes, 
the  Code,  and  the  Pandects  of  Justinian.  So  that  they  may  be 
truly  considered,  as  the  depository  of  the  collected  wisdom  of  all 
her  sages,  and  as  a  most  authentic  transcript  of  her  municipal  law, 
in  its  most  perfect  state.  Nor  is  this  all.  She  had  successively 
conquered,  and  incorporated  into  her  domain,  almost  all  the  other 
civilized  nations  of  the  eastern  continent,  including  those,  which  had 
been  most  distinguished  in  commerce  ;  and  it  can  scarcely  be 
doubted,  that  whatever  was  excellent  in  their  maritime  police,  had 
been,  from  time  to  time,  adopted  into  her  own  jurisprudence  by  the 
rescripts  of  her  emperors,  or  by  the  more  salutary  decisions  of  her 
courts,  guided  by  the  principles  of  equity,  and  selecting,  with  true 
national  comity,  from  the  usages  and  the  learning  of  foreign  coun- 
tries. We  have  direct  evidence  of  this  position  in  the  fourteenth 
book  of  the  Pandects,  title  second,  ad  Legem  Rhodiam  de  Jactu, 
where,  in  a  case  of  maritime  law,  put  to  the  emperor  Antoninus, 
he  answered  "  Lege  id  Rhodia,  quae  de  rebus  nauticis  prasscripta 
est,  judicetur ;  "  plainly  importing,  that  the  doctrines  of  the  Rhodian 
Laws  on  this  subject  had  been  recognised  and  incorporated  into  the 
Roman  jurisprudence.  As  to  the  manner,  in  which  they  were 
incorporated,  it  is  highly  probable,  that  it  was  not  by  any  imperial 
edict,  but  by  the  gradual  operation  of  judicial  decisions,  adopting 
them  as  rules,  founded  in  general  convenience,  and  fitted  to  the 
commercial  transactions  of  Rome  itself.  What  strengthens  this 
supposition  is  the  fact,  that  the  Rhodian  Laws  are  not  to  be  found 
in  the  text  of  any  of  the  Roman  codes  ;  and  the  very  title  of  the 
Pandects,  where  we  should  expect  to  find  them,  if  they  had  been 
adopted  in  mass,  contains  nothing  but  the  commentaries  and  opin- 
ions of  Roman  lawyers,  on  the  principles,  which  regulate  the  ap- 
plication of  the  law  of  jettison,  and  some  few  other  nautical  ques- 
tions of  a  kindred  nature  If  this  be  a  just  view  of  the  case,  and 
we  have  no  doubt  it  is,  the  Roman  law,  as  collected  by  Justinian, 
contains  in  itself  the  substance  of  all  the  maritime  law  of  all  an- 
tiquity, improved  by  the  philosophy  and  the  learning  of  Roman 
jurisconsults.  Yet,  how  narrow  is  the  compass,  within  which  the 
whole  maritime  law  of  Rome  is  compressed  !  It  scarcely  fills  a 
half  dozen  short  titles  in  the  Pandects,   and  about  as  many  in  the 


MARITIME    LAW.  249 

Justinian  Code,*  mixed  up  with  matter  properly  appertaining  to 
other  subjects. 

The  most  interesting  and  important  are  the  titles  in  the  Pandects; 
three  of  which  neat  of  the  responsibility  of  the  owners  and  em- 
ployers (exercitores)  of  ships  for  the  safe  keeping  and  delivery  of 
goods  shipped  on  freight,  for  the  contracts  of  the  master  in  respect 
to  the  employment,  repairs,  and  concerns  of  the  ship,  and  for  the 
acts  and  defaults  of  the  agents  and  mariners  of  the  ship;  one  treats 
of  bottomry  and  maritime  loans,  one  of  jettisons,  and  one  of 
shipwrecks.  Whoever  expects  to  find,  even  under  these  heads, 
the  minute  details  and  practical  principles  of  modern  times,  will 
certainly  be  disappointed.  He  will,  however,  find  the  elements  of 
our  own  law  on  this  subject,  expressed  with  excellent  sense,  and 
often  illustrated  by  apt  examples.  And  brief,  indeed,  as  are  these 
texts  of  the  civil  law,  the  whole  maritime  world  has  paid  them  a 
just  and  voluntary  homage,  by  adopting  them  as  the  nucleus, 
around  which  to  gather  their  own  commercial  regulations.  But  the 
very  circumstance,  that  so  little  is  here  to  be  found,  after  Rome 
had  been  for  so  many  ages  the  mistress  of  the  world  in  commerce 
and  in  arms,  seems  a  decisive  proof,  that  neither  she,  nor  any  more 
ancient  nation,  on  the  shores  of  the  Mediterranean,  had  ever  digested 
at  any  period  a  general  system  of  maritime  law. 

The  glory  of  having  reduced  the  principles  of  maritime  law  to  a 
science  belongs  to  later  times  ;  but  no  one  of  competent  judgment 
can  doubt,  that  much  of  its  intrinsic  equity,  as  well  as  comprehen- 
sive liberality,  is  owing  to  a  familiarity  with  the  Roman  digest, 
with  that  beautiful  distribution  of  civil  justice,  which  the  labors  of 
Labeo,  Capito,  Proculus,  Gaius,  Papinianus,  Paulus,  and  Ulpianus 
so  much  contributed  to  perfect  and  adorn.  The  whole  of  our  own 
law  of  contracts  rests  upon  Roman  foundations  ;  and  we  daily 
feel,  how  much  of  the  enlarged  equity,  which  pervades  the  doctrines 

*  The  principal  titles  in  the  Pandects  are,  Lib.  4,  tit,  1.  Nautae,  caupones,  stabu- 
larii,  ut  recepta  restituant.  Lib.  14,  tit.  1.  De  exercitoria  actione.  Lib.  14,  tit.  2. 
Ad  legem  Rhodiam  de  jactu.  Lib.  22,  tit.  2.  De  nautico  foenor\  Lib.  47,  tit.  5. 
Furti  adversus  nautas,  caupones,  stabularios.  Lib.  47,  tit.  9.  De  incendio,  ruina, 
uaufragio,  rate,  nave  expugnata.  In  the  Code,  Lib.  4,  tit.  25.  De  institoria  et 
exerci'o  ii  actione.  Lib.  4,  tit.  33.  De  nautico  fcenore.  Lib.  6,  tit.  62.  De 
hsereditatibus  decurionum,  naviculariorum,  cohortalium  militum  et  fabricensium. 
Lib.  11.  De  naviculariis  seu  naucleris  publicas  species  transportantibus.  Variis 
titulis.  There  are  a  few  supplementary  regulations  in  the  Novels  and  Authen- 
tics  of  Justinian,  on  the  subjects  of  maritime  loans  and  the  plunder  of  wrecks. 

32 


250  REVIEWS. 

relative  to  navigation,  charter-parties,  liens,  and  shipments,  is  de- 
duced by  a  regular  descent  from  the  li  t  e>  cf  Tr.bon'an. 

Let  it  not,  therefore,  be  imagined,  that  the  maritime  law,  as  ac- 
knowledged a  d  practised  upon  by  the  most  enlightened  nations  of 
the  pjese.it  day,  was  pioduced  per  si. /turn,  by  the  sudden  start  of 
a  single  mind  or  nation,  generalizing  and  analyzing  the  principles 
at  a  single  effort.  Far  different  is  the  case.  It  arrived  at  its  pres- 
ent comparative  perfection  by  slow  and  cautious  steps  :  by  the 
gradual  accumulations  of  distant  tines,  and  the  contributions  of 
various  nations.  Industry  and  patience  first  collected  the  scattered 
rays,  emitted  from  a  thousand  points  through  the  dim  vista  of  past 
ages ;  and  philosophy  reflected  them  back  with  tenfold  brilliancy 
and  symmetry,  li',  indeed,  a  professional  mind  might  indulge  in  a 
momentary  enthusiasm,  it  would  perceive,  that  in  this  process  had 
been  realized  the  enchantment  and  wonders  of  the  kaleidoscope, 
where  b.oke:i  and  disjointed  materials,  however  rude,  are  shaped 
into  inexl  austible  varieties  of  figures,  all  perfect  in  their  order  and 
harmonies,  by  the  adjustment  of  reflected  light  under  the  guidance  of 
philosophy. 

The  irruptions  of  the  northern  Barbarians  over  the  western  Em- 
pire, and  the  introduction  of  the  feudal  system,  seem  for  a  while  to 
have  suspended  the  operations  of  commerce.  But  as  soon  as  man- 
kind began  to  shake  off  the  drowsiness  of  the  dark  ages,  commerce 
revived  upon  the  same  shores  of  the  Mediterranean,  which  had 
long  been  her  favorite  abodes.  As  it  extended  its  vivifying  effect, 
every  state  became  sensible  of  the  importance  of  collecting  its  own 
mercantile  usages  into  some  regular  system,  at  least  for  its  own 
government.  One  of  the  earliest,  if  not  the  earliest,  and,  consider- 
ing  its  age,  the  most  extraordinary  collection  of  this  kind,  is  the 
Consolato  del  Mare.  The  question,  what  country  is  entitled  to  the 
honor  of  its  origin,  has  been  contested  with  as  much  warmth  and 
zeal,  as  the  birthplace  of  Homer;  and  the  exact  time  of  its  first  pub- 
lication has  been  enveloped  in  the  like  obscurity.  It  has  been  vari- 
ously assigned  to  a  date,  as  early  as  the  tenth  century,  and  as  late 
as  the  fourteenth.  Vinnius  and  Crusius  appear  to  have  thought, 
that  it  was  composed  in  the  time  of  St.  Louis,  King  of  France. 
Grotius  and  Marquardus  assign  it  to  the  age  of  the  Crusades,  and 
assert,  that  it  was  collected  by  order  of  the  ancient  kings  of  Arragon. 
In  this  latter  opinion  they  are  followed  by  Targa  and  Casaregis. 
Azuni,  in  a  very  elaborate  essay,  endeavours  to  establish,  that  it  is  a 
revision  of  the  maritime  code,  which  existed  in  very  early  times  in 


MARITIME    LAW.  251 

the  republic  of  Pisa.  On  the  other  hand,  Capmany,  an  eminent 
Spanish  jurist,  asserts  that  the  compilation  was  first  made  at  Barce- 
lona ;  and  in  this  opinion  he  is  followed  by  Boucher,  the  learned 
editor  of  a  late  French  translation.  The  earliest  edit  on  of  the 
work,  which  can  be  traced  by  the  diligence  of  its  editors,  is  ad- 
mitted on  all  sides  to  be  that  published  by  Celelles  at  Barcelona  in 
1494.  This,  as  Boucher  informs  us,  is  the  original  of  all  editions 
and  translations,  that  have  subsequently  ac>|. eared  in  the  Caailan, 
the  Italian,  the  Dutch,  and  French  languages.  The  English  'an- 
guage  has  not  as  yet  been  honored  by  any  translation,  except  of 
two  chapters  on  prize  law  by  Dr.  Robinson.* 

The  title  of  this  curious  collection,  Consolato  del  Mare,  (Consulate 
of  the  Sea)  is  derived  from  the  name  consolato,  (consulate  or  con- 
sular court)  which  was,  by  almost  all  the  commercial  nations  of  the 
Mediterranean,  given  to  their  maritime  courts.  The  value  of  this 
collection  has  been  differently  estimated  in  modern  times  by  learned 
men.  Hubner,  with  his  usual  petulance  has  treated  it  as  an  ill 
chosen  mass  of  maritime  usages  and  positive  ordinances  of  the  mid- 
dle ages,  or  of  times  very  little  enlightened,  which  are  now  obsolete, 
and  of  no  authority.  Bynkershoek,  in  his  usual  bold  and  deter- 
mined manner,  treats  it  with  as  little  ceremony.  After  approving 
of  its  decision  in  a  particular  case,  he  adds,  "  Vellem  omnia,  quae  in 
ilia  farragine  legum  nauticarum  reperiuntur,  asque  proba  et  recta  es- 
sent,  sed  non  omnia  ibi  sunt  tam  bonae  frugis."  To  these  opinions  we 
might  justly  oppose  the  discreet  yet  liberal  praise  of  Casaregis, 
Emerigon,  Valin,  Vinnius,  and  Lubeck.  But  in  our  judgment  it  is 
not  necessary  to  resort  to  the  testirnonia  eruditorum.  The  fact,  that 
the  substance  of  its  regulations  was  eagerly  emb:aced,  and  imme- 
diately incorporated  into  the  usages  and  the  ordinances  of  all  the 
maritime  nations  of  the  continent,  pronounces  an  eulogy  on  its 
merits,  which  no  formal  vindication  can  surpass.  Emerigon  very 
justly  states,  that  its  decisions  have  united  the  suffrages  of  all  na- 

*  The  principal  editions,  as  they  are  collected  by  the  best  authors,  are,  the  edi- 
tion of  1494  by  Celelles,  printed  at  Barcelona  in  the  Catalonian  dialect;  of  1502  at 
the  same  place;  of  1539  by  Francisco  Romano  at  Valentia  in  Castilian;  of  1544 
by  N.  Pedrozano  at  Venice  in  Italian ;  of  1567  by  Zeberti  in  Italian;  of  1576  by 
Zaneti  &  Co.  in  Italian  ;  of  1577  by  Mayssoni  at  Marseilles  in  French  ;  of  1579  at 
Venice  in  Italian  ;  of  15S4  in  Italian  ;  of  1592  at  Barcelona  in  Catalonian  ;  of  1599 
at  Venice  in  Italian  ;  of  1635  at  Aix  in  French  ;  of  1696  and  1720  by  Casaregis  in 
Italian ;  of  1704  by  Westerveen  in  Italian  and  Dutch ;  of  1732  by  Cayetano  de 
Tallega  in  Castilian;  of  1791  by  Capmany  in  Castilian  at  Madrid;  of  1808  by 
Boucher  in  French. 


252  REVIEWS. 

tions ;  and  it  has  furnished  ample  materials  for  the  maritime  ordi- 
nance of  France  of  1631,  an  ordinance,  which  has  immortalized 
the  ministry  of  Louis  XIV.,  and  which,  perhaps,  more  than 
the  maritime  code  of  any  other  nation,  deserves  the  praise  of 
philosophic  jurists.  Nay,  more,  the  Consolato  del  Mare  contains 
the  rudiments  of  the  law  of  prize,  as  it  is  at  present  administered  ; 
and  its  authority  has,  perhaps,  weighed  more  than  any  other,  in 
settling  the  great  controversy  of  our  own  times,  relative  to  the 
question,  whether  free  ships  make  free  goods.  England,  in  assert- 
ing the  negative,  (as  we  think  with  vast  force  of  reasoning,)  has 
reposed  on  this  venerable  monument,  as  affording  the  surest 
proof  of  the  antiquity  and  the  general  recognition  of  the  rule, 
which  she  has  so  justly  sought  to  establish,  and  which  has  stood 
approved  to  the  good  sense  of  the  three  greatest  civilians  of 
modern  times,  Grotius,  Bynkershoek,  and  Heineccius. 

As  the  Consolato  del  Mare  is  a  rare  work  in  our  country,  it 
may  not,  perhaps,  be  useless  to  give  a  general  outline  of  its  method 
and  contents.  The  whole  work,  as  we  now  find  it  in  the  edition 
of  Casaregis,  is  contained  in  two  hundred  and  ninety-four  chap- 
ters.* Of  these  the  first  forty-three  chapters  do  not,  properly 
speaking,  belong  to  the  original  collection,  but  treat  of  the  juris- 
diction and  forms  of  proceeding  in  the  consular  court  of  Valentia. 
The  forty-fourth  chapter  is  the  proper  commencement  of  the  work; 
which  contains,  not,  as  is  often  supposed,  the  positive  institutions  of 
any  particular  maritime  nation,  promulgated  by  its  sovereign ;  but  a 
collection  of  the  general  usages  and  customs  of  the  sea,  as  ap- 
proved and  practised  upon  in  the  most  enlightened  ages.  The 
forty-fourth  chapter,  which  is  in  fact  the  proem  of  the  work,  states, 
"  These  are  the  good  institutions  and  good  customs,  which  relate  to 
the  sea,  which  the  wise  men,  who  went  abroad,  began  to  give  to  our 
ancestors,  which  .form  the  book  of  the  knowledge  of  good  cus- 
toms, in  the  course  of  which  will  be  found  the  duty  of  the  master 
of  the  ship  towards  the  merchants,  mariners,  passengers,  and 
all  other  persons,  who  go  in  the  ship,  and  also  the  duty  of  the 
merchants,  mariners,  passengers,  &rc.  towards  the  master  of  the 
ship ;  for  whoever  pays  freight  for  his  person,  as  well  as  merchan- 
dize, is  denominated  a  passenger."  The  work  then  proceeds,  in 
an  order,  not  very  exact  or  methodical,  to  state  the  doctrines  rela- 
tive  to   the  ownership,  building,   and    equipment    of    ships  ;    the 

*  In  the  edition  of  Boucher,  which  is  a  translation  from  the  original  edition  of 
Celelles,  the  whole  nnmher  of  chapters  is  237. 


MARITIME    LAW.  253 

authorities  and  duties  of  the  master  and  owner ;  the  rights  and 
duties  of  the  mariners  ;  the  responsibility  of  the  masters,  owners, 
and  mariners,  in  cases  of  the  shipment  of  goods,  in  a  general  ship, 
or  under  charter-parties  ;  the  earning,  payment,  and  loss  of  freight 
and  wages;  and  incidentally  treats  of  ransoms,  salvage,  average, 
jettisons,  and  captures,  and  recaptures. 

Such  is  the  Consolato  del  Mare,  the  grand  reservoir,  from  which, 
as  we  have  already  intimated,  have  been  drawn  the  principal  ordi- 
nances of  modem  maritime  nations.  It  is  remarkable,  that  the 
laws  of  Oleron  and  Wisbuy  (which  are  of  so  great  antiquity,  that 
they  dispute  precedency  with  the  Consolato,  and  by  many  learned 
men  are  assigned  to  an  earlier  age)  contain  nothing  on  the  subject 
of  the  law  of  prize  ;  and  that  the  Consolato  stands  alone,  as  the  ear- 
liest expounder  of  the  law  of  nations.  In  neither  of  them,  if  we 
except  a  single  article  (art.  66.)  of  the  laws  of  Wisbuy,  is  there  the 
slightest  allusion  to  the  contract  of  insurance.  There  is,  therefore, 
some  reason  to  believe,  either  that  the  laws  of  Wisbuy,  as  we  now 
have  them,  belong  to  a  later  date,  than  is  generally  assigned  to  it, 
or  that  the  article  in  question  is  an  addition  to  the  original  code.* 

The  history  of  commercial  jurisprudence,  since  the  publication 
of  the  Consolato,  including  therein  also  the  law  of  bills  of  ex- 
change and  promissory  notes,  would  be  very  interesting  and  instruc- 
tive, at  least  to  the  professional  reader.  He  would  there  have  an 
opportunity  to  trace  the  numerous  rivulets,  which,  in  different  ages 
and  nations,  have  contributed  to  form  the  vast  and  perpetually 
increasing  stream  of  commercial  law.  He  would  there  learn  the 
slow  and  almost  imperceptible  manner,  in  which  its  principles  have, 
from  minute  origins,  expanded  to  their  present  comprehensive  and 
systematical  equity.  He  would  look  back  with  admiration  and 
surprise  upon  the  patience,  public  spirit,  and  scientific  enthusiasm 
of  those  learned  men,  who  devoted  themselves,  with  such  unre- 
mitted labor,  to  the  development  of  those  principles  of  moral 
propriety  and  justice,  which  distinguished  this  branch  of  the  law. 
Above  all,  he  would,  perhaps,  catch  a  spark  from  the  altar,  which 
would  light  him   on  still  farther  in  the  paths  of  virtuous  glory,  and 

*  Stypmannus,  Gibalinus,  Ausaldus  and  Casaregis  suppose,  that  the  contract  of 
insurance  was  introduced  in  the  fifteenth  century.  Emerigon  relies  on  this 
article  in  the  laws  of  Wisbuy  to  establish  the  contrary.  Marshall,  in  his  Insu- 
rance, (p.  18,)  doubts,  whether  the  latter  part  of  this  article,  as  it  stands  in  Cleirac, 
be  not  a  mere  comment  upon  the  original  text.  If  so,  the  other  part  of  the  article 
may  well  admit  of  an  explanation,  foreign  from  any  notion  of  insurance.  Malyne 
omits  this  clause. 


254  REVIEWS. 

would  stimulate  him  still  more  to  enlarge  the  boundaries  of  the 
science,  and  vindicate  to  himself  that  immortality,  which  Cicero 
was  not  ashamed  to  court,  and  from  which  even  the  modesty  of 
Sir  William  Jones  did  nol  retire. 

13ut  we  have  no  space  or  leisure  for  such  interesting  inquiries. 
They  belong  to  some  philosophic  spirit,  who,  (Vee  from  the  bustle 
and  the  toils  of  professional  life,  may  indulge  himself  in  juridical 
speculations  in  learned  ease.  Such  a  one  may,  without  rashness, 
undertake  the  task,  and  encourage  his  heart  with  the  consideration, 
Numina  nulla  premunt. 

It  may  not,  however,  he  uninstructive  to  review,  in  a  rapid  sketch, 
the  merits  of  some  of  the  most  eminent  writers,  who,  in  different 
ages,  from  the  early  twilight  of  maritime  law,  contributed  to  give 
the  public  mind  that  rational  direction,  which  has  made  even  the 
technical  rules  of  that  law  the  dictates  of  philosophy  itself. 

About  the  middle  of  the  sixteenth  century,  Peckius,  a  distin- 
guished civilian  of  Belgium,  published  an  edition  of  the  principal 
texts  in  the  Pandects  and  Code,  on  nautical  affairs,  and  enriched 
them  with  an  ample  commentary,  in  which  he  has  brought  together 
all  the  valuable  remarks  of  preceding  jurists  on  this  subject,  and 
explained  the  reasons  of  the  principles  stated  in  the  texts.  At  the 
distance  of  about  a  century,  this  work  was  reedited  with  supple- 
mentary comments  by  Vinnius,  who,  in  his  best  manner,  has  added 
illustrations  from  the  maritime  laws  of  other  nations,  and  thereby 
supplied  the  deficiencies  of  his  master.*  Vinnius  himself  com- 
plains of  these  deficiencies:  "  Apparetque  ex  toto  illo  Peckii  opere, 
non  vidisse  eum  ullas  alias  leges  de  rebus  maritimis  quam  quae  in 
Corpore  Juris  Justiniani  continentur."  He  then  very  justly  re- 
proves the  long  digressions,  in  which  Peckius  had  indulged  ;  but 
concludes  :  "  Ostendit  sane  in  hoc  opere  Peckius  sibi  non  defuisse 
justam  eruditionem  solidamque  juris  et  multarum  rerun)  scientiam." 
The  work,  however,  such  as  it  is,  with  its  double  commentaries,  is 
more  frequently  quoted  than  read,  in  our  own  times. 

About  the  same  period,  the  work  on  averages  of  Quintin 
Weytsen,  a  counsellor  of  Holland,  is  supposed  to  have  been  first 
published.  In  the  body  of  the  work  there  is  no  reference  to  any 
decision  posterior  to  1551,  soon  after  which  time,  it  wras,  therefore, 

*  The  works  of"  Peckius  were  first  collected  and  published  together  in  1646; 
but  the  edition  before  us  was  published  at  Antwerp  in  1679.  His  treatise,  Ad  Rem 
Nauticam,  was  first  published  in  1556  ;  and  republished,  with  the  commentary 
of  Vinnius,  in  12mo.  at  Leyden,  in  1647.     Vinnius  died  in  1657. 


MARITIME    LAW.  255 

most  probably  compiled  ;  and  the  editor  of  the  edition  of  1651 
speaks  of  it,  as  a  work,  which  had  appeared  in  Holland  a  long 
time  before.  It  is  certainly  not  without  merit  ;  and  Casaregis 
thought  so  well  of  it,  that  he  translated  it  into  Latin,  and  put  it  at 
the  beginning  of  the  third  volume  of  his  works  with  the  notes  of 
Van  Leeuwen  and  Mathieu  de  \  icq. 

Straccha  and  Santerna,  the  first  an  Italian,  and  the  last  a  Portu- 
guese jurist,  adorned  the  latter  part  of  the  sixteenth  century. 
Their  works  are  found  collected  in  a  large  work,  De  Mercatura, 
which  was  first  published  at  Cologne,  in  16:-2'3,  and  subsequently  at 
Amsterdam  in  1679.*  The  principal  tracts  of  Straccha  are 
De  Mercatura,  De  Nautis,  De  Navibus,  De  Navigatione,  and  De 
Assecurationibus.  In  the  first  (De  Mercatura)  he  treats  in  separate 
parts  of  the  following  topics:  1.,  who  is  a  merchant,  and  what  is 
merchandising ;  2.,  of  the  condition  of  merchants,  and  things 
appertaining  to  that  condition  ;  3.,  of  those  who  are  prohibited 
from  being  merchants  ;  4.,  in  respect  to  what  things  (causis)  mer- 
chandising may  be;  5.,  of  the  contracts  of  merchants;  6.,  of  man- 
dates, or  orders  on  commission  ;  and  7.,  of  some  miscellaneous 
questions  relative  to  merchandise.  In  the  second  tract,  (De  Nautis) 
he  treats  generally  of  the  rights,  duties,  and  responsibility  of  the 
masters  and  mariners  of  ships,  arising  from  their  contracts  or  their 
defaults.  In  the  third  (De  Navibus)  he  treats  of  the  ownership, 
building,  repairing,  and  freighting  of  ships,  and  other  contracts 
relative  to  shipments.  In  the  fourth  (De  Navigatione)  he  dis- 
cusses some  points  not  embraced  in  the  preceding.  In  the  fifth 
(De  Assecurationibus)  after  a  very  elaborate  preface,  he  introduces 
the  form  of  the  policy  of  insurance  used  in  Ancona  in  1567;  and 
taking  up  the  several  matters,  in  the  order  of  the  policy,  he  ex- 
amines every  sentence  by  itself,  and  in  a  perpetual  gloss,  or  com- 
mentary, explains  the  doctrines  of  insurance  applicable  to  the 
contract.  The  treatise  of  Santerna,  which  is  entitled  De  Assecu- 
rationibus et  Sponsionibus  Mercatorum,  is,  on  the  other  hand,  a 
systematic  treatise  upon  the  same  subject.  Both  of  these  writers 
draw  their  doctrines  from  the  usages  of  merchants,  from  general 
reasoning,  and  above  all,  from   the  law  of  contracts  in  the  Roman 

*  The  title  of  the  work  is  "  Benevenuti  Straccha?  aliorumque  clarissimorum 
jurisconsultorum  de  mercatura,  cambiis,  sponsionibus,  creditoribus,  fidejussoribus, 
debitoribus,  decoctoribus,  navibus,  navigatione,  assecurationibus,  subhastionibus, 
aliisqne  mercatorum  negotiis,  rebusque  ad  mercaturam  pertinentibus,  decisiones 
et  tractatus  varii." 


256  REVIEWS. 


Code,  wherever  it  is  applicable.  Considering  the  age,  in  which 
they  wrote,  they  are  very  respectable  authorities  ;  and  Valin  has 
pronounced  the  eulogy  of  Straccha,  when  he  declares  him  "  An 
author  truly  estimable."     (Auteur  vraimeni  estimable.) 

The  seventeenth  century  was  distinguished  by  the  labors  of  a 
great  many  illustrious  writers  on  maritime  law.  To  the  beginning 
of  that  century,  or,  to  the  latter  part  of  the  preceding,  is  to 
be  referred  the  work,  entitled  "  Le  Guidon,  utile  et  necessaire 
pour  ceux  qui  font  merchandise  et  qui  mettent  a  la  mer."  This 
is  an  ancient  French  treatise  on  the  law  of  insurance  and  bot- 
tomry, in  which  the  various  doctrines  are  examined  in  a  very  scien- 
tific manner,  and  with  a  practical  accuracy,  greatly  surpassing  all 
preceding  works  on  the  same  subject.  The  author  of  the  work, 
and  the  exact  lime  of  its  first  publication,  are  unknown.  In  1647, 
Cleirac  published  a  new  edition  of  it.  with  an  excellent  commentary, 
in  his  "  Les  Us  et  Continues  de  la  .Mer."  The  account,  lie  gives  of 
it.  i-.  that  it  was  an  old  French  work,  drawn  up  for  the  use  of  the 
merchants  of  Rouen  ;  and  he  adds,  "  Ce  avec  taut  d'adresse  et  de 
subiilite  taut  d.'liee,  que  l'auteur  d'icelui,  en  explicant  les  contrats 
on  polices  d'assurance,  a  insinue  et  fait  entendre  avec  grande  facilite 
tout  ce  que  est  des  autres  contrats  maritimes,  et  tout  le  general  du 
commerce  naval  ;  de  sorte  qu'il  n'a  rien  oinis,  si  ce  n'est  seulement 
d'y  mettre  son  nom  pour  en  conserver  la  memoire  et  l'honneur  qu'il 
merite,  d'avoir  tant  oblige  sa  patrie,  et  toutes  les  autres  nations  de 
l'Europe  ;  lesquelles  peuvent  trouver  en  son  ouvrage  l'accomplisse- 
ment  de  ce  qui  manque,  ou  la  correction  de  ce  qui  est  mal  ordonne 
aux  reglemens,  qui  chacune  a  fait  en  particulier  sur  semblable 
sujet."  This  is  high  praise  ;  but  Cleirac  was  a  very  competent 
judge.  His  own  commentary  on  this  work,  and  on  the  laws  of 
Oleron,  establishes  his  reputation  as  a  maritime  jurist,  in  the  very 
first  rank.*  And  to  his  collections  and  commentaries  Lord  Mans- 
field was  unquestionably  indebted  for  many  of  the  best  principles 
of  commercial  law,  which  he  has  infused  into  the  English  system.  It 
is  most  obvious,  from  his  decisions,  that  he  had  studied  Cleirac  with 
extraordinary  attention. +  And  we  may  add,  upon  the  authority  of 
Valin,  that  Le  Guidon  formed  a  part  of  the  immense  compilation 
of  law,  from  which  was  drawn  the  famous  ordinance  of  1681. 


*  There  have  been   many  editions  of  Cleirac's  work,  the  earliest  of  which  is 
of  lfilT,  and  the  latest,  we  believe,  is  the  one  now  before  us,  of  1788. 
t  See,  among  other  cases,  Luke  v.  Lyde.    2  Burr.  R.  882. 


MARITIME    LAW.  251 

About  the  middle  of  the  sevententh  century,  appeared  the  works 
of  Stypmannus,  of  Loccenius,  of  Kuricke,  and  of  Roccus,  on 
maritime  law.*  Stypmannus,  in  his  treatise,  entitled  Jus  Mariti- 
nium,  discusses  in  a  prolix  manner  most  of  the  questions  of 
maritime  law.  Loccenius  is  more  condensed,  and  more  narrow  in 
his  range.  The  subject  of  insurance  is  treated  by  him  in  a  very 
slight  and  careless  manner.  In  other  respects,  the  work  is  quite  as 
useful  as  Stypmannus.  There  are  three  treatises  by  Kuricke. 
The  first,  Jus  Maritimum  Hanseaticum,  contains  an  elaborate 
commentary  on  the  several  articles  composing  the  Hanseatic  ordi- 
nance of  1614.  The  second,  Diatriba  de  Assecurationibus,  is  a 
very  short  discussion  on  the  law  of  insurance.  The  third,  Reso- 
lutio  Questionum  Illustrium  ad  Jus  Maritimum  pertinentium,  is  a 
collection  of  miscellaneous  questions  on  maritime  law,  which  the 
author  is  pleased  to  call  "  Illustrious  Questions,"  but  which,  in  our 
humble  judgment,  contain  a  great  deal  of  learned  trifling,  and  insig- 
nificant criticism.  One  of  these  "  illustrious  questions  "  is,  whether 
a  journey  by  sea  is  preferable  to  a  journey  by  land  ;  and  another, 
whether  a  ship  repaired  is  the  same  ship,  which  she  was  before 
the  repairs  were  made.  From  this  specimen,  we  might,  perhaps, 
be  induced  to  turn  with  contempt  from  such  an  author.  But  it  was 
the  misfortune  of  the  age,  in  which  Stypmannus,  and  Loccenius, 
and  Kuricke  lived,  that  jurists  employed  a  great  deal  of  their  time 
and  talents  in  idle  discussions  upon  unimportant  topics,  and  buried 
matter  of  more  worth  and  virtue  under  a  cumbrous  load  of  scho- 
lastic learning  and  metaphysical  subtilties.  Far  different  is  the 
character  of  Roccus.  He  was  an  eminent  jurist  and  judge  at 
Naples,  and  published  two  tracts,  (one,  De  Navibus  et  Naulo,  the 
other,  De  Assecurationibus,  which  he  modestly  terms  Notabilia,) 
which  deserve,  and  have  received  the  approbation  of  all  Europe. 
They  consist  of  a  series  of  texts,  remarkable  for  their  brevity, 
accuracy,  sound  exposition  of  maritime  law,  and  practical  utility 
even  in  our  days.  His  learned  Dutch  editor,  Westerveen,  has 
justly  observed  of  these  treatises,  "  Iisque  casus  quotidianos  tarn 
breviter    et   absolute    complexus    est    [Roccus],    tarn    luculenter 

"  Stypmannus  was  first  published,  as  Valin  says,  at  Stralsundin  1661.  Wester- 
veen, in  his  edition  of  Roccus,  refers  to  an  earlier  edition,  printed  at  Gryphiswaldia 
in  1652.  Loccenius  was  first  published,  at  Stockholm  in  lb'52;  Kuricke,  at  Hani- 
burg  in  1667  ;  and  Roccus,  at  Naples  in  1655.  These  works,  except  Roccus,  were 
collected  and  published  by  Heineccius,  with  a  learned  preface,  in  a  single  volume, 
at  Magdeburg  in  1740.  under  the  title  of  Scriptorum  de  Jure  Nautico  et  Maritimo 
Fasciculus. 

33 


258  REVIEWS. 

proposuit,  tarn  dilucide  explicavit,  ut  omnium  Scriptorum  indicem 
sen  compendium  fecisse  videalur."  *  Roccus  has,  indeed,  drawn 
liberally  from  his  predecessors,  and  from  none  more  frequently,  or 
more  correctly,  than  from  Juan  de  Hevia  Bolahos,f  a  most  learned 
and  excellent  Spanish  writer  oi  his  own  age,  whose  works  deserve 
to  be  better  known.  But  Roccus  was  himself  endowed  with  a 
clear  and  comprehensive  mind,  and,  as  his  select  responses  show, 
with  a  most  acute  and  sound  judgment.  His  works  are  of  more 
practical  use  to  an  English  lawyer,  than  all  the  other  maritime 
works,  if  we  except  Cleirac,  which  had  been  previously  published. 
Lord  Mansfield  is  under  no  inconsiderable  obligations  to  them,  and 
can  be  traced,  in  some  of  his  most  celebrated  decisions,  back  to  the 
pages  of  the  Neapolitan. 

We  have  now  approached  the  limes  of  Bynkershoek  and  Cas- 
aregis,  two  of  the  most  eminent  civilians,  that  ever  adorned  the 
courts  of  any  nations.  In  the  short  review  already  made  of  mari- 
time writers  since  the  days  of  the  Consolato,  we  have  purposely 
omitted  to  speak  of  those,  who  professedly  wrote  on  the  law  of 
prize,  or  the  more  general  doctrines  of  the  law  of  nations.  We 
have  the  more  readily  done  this,  not  because  there  are  not  very 
ample  materials  for  historical  and  critical  disquisition,  but  because 
war,  and  conquest,  and  national  calamity,  have  but  too  frequently 
brought  them  before  the  public.  Who,  indeed,  is  there,  that  is 
ignorant  of  the  fame,  or  the  writings,  of  Cirotius  and  Puffendorf  ? 
Bynkershoek  has  immortalized  himself  by  his  treatise  De  Foro 
Legatorum,  and  his  Questiones  Publici  Juris  de  Rebus  Bellicis.J  It 
is  not,  perhaps,  as  generally  known,  that  he  has  written  a  very  neat 
sketch  of  the  law  of  bottomry,  and  some  very  excellent  disserta- 
tions on  the  subject  of  commercial  law,  and  particularly  of  insurance. 

*  The  works  of  Roccus  vert:  collected  and  published  at  Naples,  in  a  large 
folio  volume.  They  consist  of  the  tracts  above  mentioned,  and  two  centuries  of 
answers  to  select  questions.  Westerveen  selected  the  treatises  and  responses  on 
maritime  law,  and  published  them  in  t2mo,  at  Amsterdam,  in  1708.  An  excellent 
translati  id  has  been  recently  published  of  (lie  tracts  De  Na\  ibus  et  Naulo,  and  De 
A  securatione,  by  Joseph  R.  Ingersoll,  Esq.  of  Philadelphia. 

I  Mr.  Duponceau,  in  his  most  valuable  notes  to  his  translation  of  Bynkershoek 
on  the  Law  "!'  War,  has  spoken  with  becoming  praise  of  De  Hevia.  The  tracts, 
referred  to,  are  those  published  by  De  Hevia,  on  commercial  contracts,  in  his  insti- 
tute of  the  law  of  Spain,  called  Curia  Philippica. 

i  Mr.  Duponceau  has  prefixed  to  his  translation  of  this  last  work  a  short,  but 
very  satisfactory,  account  of  the  life  ami  writings  of  Bynkershoek.  Why  will  nut 
Mr.  Duponceau  increase  the  public  gratitude,  by  translating  the  works  of  other 
learned  foreigners,  and  by  a  critical  account  of  the  writings  of  those  civilians,  who 
are  best  entitled  to  the  attention  and  study  of  American  lawyers  ? 


MARITIME    LAW.  259 

Every  thing,  which  came  from  this  great  man,  bears  the  marks  of 
an  original,  vigorous,  and  independent  mind.  He  often  expresses 
himself  with  boldness  and  vehemence,  and  sometimes  also  with  a 
lofty  contempt  for  the  opinions  of  others.  But  his  learning, 
sagacity,  and  sound  judgment,  rarely,  if  ever,  desert  him.  Alluding 
to  Adrian  Verwer,  a  Dutch  writer  on  bottomry  and  average,  he 
says,  "  Haec  etiam  adhibuit,  qui  ante  aliquot  annos  hunc  contractual 
commentariolo  illustrare  conatus  est ;  sed,  sat  scio,  manes  ejus  non 
offendarn,  si  et  ipse  ex  penu  meo  aliquid  proferam  ;  ille  mercatorem 
egit,  ego  cum  maxime  jurisconsultum  agam,  et  sine  jurisprudentia 
etiam  haec  sacra  non  constant."  He  was  conscious  of  his  own 
strength,  and,  while  acting  the  part  of  a  jurisconsult  in  expounding 
doctrines,  he  speaks  in  a  tone,  which  indicates  the  judge,  from  whose 
sentence  no  appeal  is  permitted.  Of  his  works  it  may  be  asserted 
without  rashness,  that  the  more  they  are  studied,  the  more  they 
will  be  admired  and  respected. 

Casaregis  was  born  at  Genoa,  in  1670,  and  died  in  1737.  He 
was  appointed  a  judge  of  the  Supreme  Tribunal  of  Tuscany  ;  and 
in  that  office,  as  his  biography  states,  he  discharged  the  duties  with 
great  assiduity,  integrity,  prudence,  and  universal  approbation,  for 
more  than  twenty  years.  His  works  have  been  collected  and  pub- 
lished in  four  folio  volumes,  and  consist  of  two  hundred  and  twenty- 
six  discourses  on  various  topics  of  commercial  law,  of  a  Latin  trans- 
lation of  Weytsen  on  Averages,  as  already  mentioned,  of  a  new 
edition  of  the  Consolato  del  Mare,  with  an  excellent  explanation 
or  commentary  (Spiegazione)  of  his  own,  and  a  treatise,  entitled 
"  II  Cambista  istruito,"  upon  bills  of  exchange,  and  other  com- 
mercial securities,  and  of  a  few  tracts  upon  municipal  law.* 
His  commercial  discourses  are  by  far  the  most  valuable  of  all  his 
works  to  a  modern  lawyer.  They  embrace  the  whole  circle  of 
commercial  law,  including  the  law  of  prize,  and  are  written  in  a 
plain,  clear  style,  abounding  in  just  and  practical  remarks,  and  sound 
learning.  All,  that  is  most  useful  in  the  works  of  former  jurists,  is 
collected  and  commented  on,  with  acuteness  and  accuracy  ;  and,  for 
the  most  part,  the  topics  are  examined,  until  the  whole  subject 
matter  is   exhausted.     Rarely  have  we  looked  into  his  works  upon 


*  The  best  edition  of  Casaregis's  works  is  that  printed  at  Venice  in  1740  (which 
is  now  before  us)  in  4  vols,  folio.  The  two  first  volumes  contain  bis  Diseursus 
de  Commercio,  in  Latin,  the  third,  Tractatus  de  Avariis,  Cambista  instruito,  and 
Consulatus  Maris,  the  fourth,  Elucubrationes  ac  Resolutiones  ad  Statuta  Janua?  de 
Decretis  ac  de  Successionibus  ab  intestato. 


260  REVIEWS. 

any  contested  question,  without  risnig  instructed  and  enlightened 
bv  the  perusal.  Higher  praise  cannot  be  bestowed  upon  him  than 
the  fact  affords,  that  he  is  quoted  by  all  subsequent  writers  on 
commercial  law,  as  a  leading  and  safe  authority  ;  and  \  alin  does 
not  scruple  to  affirm,  that  he  is,  beyond  all  contradiction,  the  best 
of  all  the  maritime  authors.  In  recommending  him,  therefore,  to 
the  diligent  study  of  our  own  lawyers,  we  are  confident,  that  we  do 
them  a  substantial  service,  which  will  he  estimated  the  more,  as 
familiarity  with  his  works  makes  his  merits  more  extensively 
known. 

We  had  almost  forgotten  to  speak  of  an  author,  who  was  a 
countryman  and  contemporary  of  Casaregis,  and  is  often  cited  by 
him  with  great  respect  and  approbation.  We  allude  to  Taiga, 
who,  in  his  Reflections  on  Maritime  Contracts,  (Ponderazioni  supra 
la  Contractazione  Marittima,)  has  drawn  from  the  civil  and  canon 
law,  the  Consolato  del  Mare,  the  usages  of  maritime  nations,  and 
preceding  writers,  the  most  useful  learning  on  all  the  subjects  of 
maritime  law,  except  insurance  ;  and  has  adapted  his  work  to  prac- 
tice, by  collecting  the  forms  of  the  various  contracts,  with  hints  for 
their  proper  application.  He  is  generally  esteemed  as  an  indus- 
trious and  correct  author ;  but  his  fame  seems  lost  in  the  superior 
blaze  of  his  illustrious  countryman.* 

France  was,  during  the  seventeenth  century,  behind  Italy,  in  her 
attention  to  the  great  interests  of  commerce;  and  her  truly  admira- 
ble ordinance  of  1681  afforded  the  most  ample  materials  for  the 
employment  of  the  best  talents  of  her  bar  and  bench.  Of  this 
masterly  code  Mr.  Marshall,  in  his  Treatise  on  Insurance,  has  spoken 
with  bare  justice,  when  he  says,  "  It  forms  a  system  of  whatever 
experience  and  the  wisdom  of  ages  had  pronounced  to  be  most 
just  and  convenient  in  the  marine  institutions  of  the  maritime 
states  of  Europe.  And  though  it  contains  many  new  regulations, 
suggested  by  motives  of  national  interest,  yet  it  has  hitherto  been 
esteemed  a  code  of  great  authority,  upon  all  questions  of  maritime 
jurisprudence."  Excellent,  however,  as  this  code  is,  it  stood  in 
need  of  a  philosophical  commentator,  to  explain  its  principles,  to 
follow  them  out  into  all  their  minute  comeqi  ences,  and  to  illustrate 
and  strengthen  them  by  the  lights  borrowed  from  the  whole  body 

*  The  works  of  Targa  are  not  very  common  in  our  country.  A  good  edition 
was  published  at  Genoa  in  1750,  and  we  have  before  us  a  Spanish  translation,  by 
Juan  Manuel  (.iron,  printed  at  Madrid  in  1753,  in  which  the  author  is  highly 
praised. 


MARITIME    LAW.  261 

of  maritime  jurisprudence.  The  middle  of  the  eighteenth  century 
witnessed  the  perfect  accomplishment  of  this  great  task,  after  the 
failure  of  oilier  attempts  had  almost  extinguished  every  hope. 
Valin  has  the  singular  merit  of  having  produced  a  commentary, 
which  in  celebrity  lias  eclipsed  even  the  text  itself,  and  in  authority 
stands  equally  high  with  the  positive  regulations  of  the  royal 
ordinance. 

The  illustrious  author  published  his  great  work  in  1760,  and  it 
immediately  circulated  over  all  Europe.  He  has  justly  observed, 
"  Un  commentaire  sur  l'ordonnance  de  la  marine  est  un  de  ces 
projets  hardis,  dorit  le  succes  peut  seul  justifler  l'entreprise.  L'au- 
teur  des  notes  (imprimees  in  1714)  sur  cette  ordonnance,  loin  d'en 
avoir  compris  la  difficulte,  il  ne  l'a  pas  meme  soupconnee,  et 
j'avoue  qu'elle  ne  m'a  ete  bien  connue,  que  lors  qu'il  iretoit  plus 
temps  de  reculer."  Never,  indeed,  was  success  better  earned,  or 
more  completely  attained.  The  work  is  a  perpetual  commentary 
upon  every  article  of  the  ordinance,  and  contains  within  itself  the 
body  of  maritime  jurisprudence,  expounded  with  a  philosophical 
precision,  and  depth  of  learning,  which  have  rarely  been  equalled, 
and  can  scarcely  be  surpassed.  It  is  to  be  lamented,  that  the 
author  scarcely  lived  long  enough  after  the  publication,  to  enjoy 
the  reward  of  his  labors.*  His  fame  —  it  may  perhaps  perish  — 
but  it  will  cast  the  last  stream  of  its  light  upon  the  last  ruins  of 
time. 

England  had  hitherto  made  but  slow  advances  in  commercial 
law.  The  laws  of  Oleron,  the  articles  preserved  in  the  Black 
Book  of  the  Admiralty,  and  the  treatises  of  Molloy,  Malynes,  and 
Marius,  formed  nearly  the  whole  stock  of  her  written  maritime 
jurisprudence.  But  the  period  was  now  arrived,  when  a  different 
state  of  things  was  to  be  presented.  The  dawn  of  a  brighter  day 
had  already  diffused  its  pale,  but  increasing  light,  round  her  wide 
domain,  and  it  burst  upon  us,  with  inextinguishable  glory,  when 
Lord  Mansfield  ascended  the  bench. f  This  was  an  epoch  in 
English  juridical  history,  since  which  the  grandeur  of  her  naval 
power  has  scarcely  been  more  universally  felt,  or  acknowledged, 
than  her  commercial  jurisprudence  has  been  admired,  and  respected, 

*  Monsieur  Valin  died  in  17(;o.  His  works  are  1.,  "  Nouveau  Commentaire 
sur  l'Ordonnance  de  la  Marine,"  in  2  vols.  4to.,  first  printed  in  1760;  the  edition 
before  us  is  1766.  2.,  Traite  des  Prisrs.  in  2  vols.  8vo.,  printed  in  1763.  3.,  Com- 
mentaire sur  la  Coutume  de  la  Kochelle,  in  3  vols.  4to.,  printed  in  176S. 

t  Lord  Mansfield  came  upon  the  bench  on  the  11th  of  November,  1756. 


262 


REVIEWS. 


for  its  solid  principles  and  equity.  Lord  Mansfield  was  an  accom- 
plished scholar,  whom  Pope  has  elegantly  praised  in  lamenting, 

"  How  sweet  an  Ovid  in  ;i  Murray  lost  !  " 

He  was  an  excellent  civilian,  and,  from  his  Scotch  education,  he  was 
early  imbued  with  a  reverence  for  the  civil  law.  He  was  thoroughly 
versed  in  the  maritime  literature  of  the  day,  and  had  studied  all  the 
best  works,  from  the  Consolato  del  Mare  to  Valin.  To  the  latter, 
indeed,  he  ow  obligatious.     Mr.   Marshall   has   observed, 

that  "He  appears  to  have  taken  much  pains  to  possess  himself  of 
the  soundest  principles  of  marine  law,  and  of  the  law  of  insurance; 
and  that  he  seems  to  have  drawn  much  of  his  knowledge  upon  these 
subjects  from  the  ordinance  of  Louis  XIV.,  and  from  the  elaborate 
and  useful  commentary  of  Valin."     With  all  these  advantages  he 
possessed  liberal  and  enlarged  views,  a  sagacious  and  penetrating 
spirit  of  inquiry,  an  unwearied  diligence,  a  solid  judgment,  and  a 
most  persuasive  flow  of  spontaneous  and  glowing  eloquence.    What- 
ever subject  he   touched  was  touched  with   a  master's  hand  and 
spirit.     He  employed   his  eloquence  to  adorn  his  learning,  and  his 
learning  to  give  solid  weight  to  his  eloquence.     He  was  always  in- 
structive and  interesting,  and  rarely  without  producing  an  instanta- 
neous conviction.     He  broke  down  the  narrow  hairier  of  the  com- 
mon law  against  the  prejudices  of  the   age,  and  infused  into  it  an 
attractive  equity,  which  it  seemed  to  all  his   predecessors  incapable 
of  sustaining.      All  Westminster  Hall  listened   with  admiration  and 
delight  to  his  judgments,  and  stood  astonished  at  the  extent  and 
variety  of  his  attainments;  and,  if  he  ever  removed  from  the  temple 
of  English  jurisprudence  a  single  pillar  of  Gothic  structure,  it  was, 
that  he  might   replace  it  with  the  exquisite  finish  of  the  Corinthian 
order,  carved  in   Parian  marble.     In  short,  he  was  one  of  those 
great  men  raised  up  by  Providence,  at  a  fortunate  moment,  to  effect 
a  salutary  revolution  in  the  world.      If  he  had  never  existed,  we 
should  still  have  been  in   the  trammels  and  the  quibbles  of  tech- 
nical refinements.     He  has  lived  :  and  the  law  is  redeemed  from 
feudal  selfishness  and   barbarity.     A  lofty  ambition  of  excellence, 
that  stirring  spirit,  which  breathes  the  breath  of  heaven  and  pants 
for  immortality,  sustained   his  genius   in  its  perilous  course.     He 
became,  what  he  intended,  the  jurist  of  the  commercial  world,  the 
judge  for  every  polished  nation,   whose   code  is   built  upon  virtue 
and  principle.     He  lived  to  a  good  old  age,*  and  could  look  back 

*  Lord  Mansfield  died  on  (he  20th  of  March,  1793,  in  the  89th  year  of  his  age. 


MARITIME    LAW.  263 

upon  a  long  track  illumined  with  glory.  But  even  that  track  is 
but  a  point,  compared  with  the  splendor  of  his  fame,  as  it  will  be 
seen  ascending  and  widening  by  distant  ages.  Is  it  most  for  the 
honor  of  Valin,  or  of  Lord  Mansfield,  that  the  commentary  of  the 
former  has  furnished  the  principal  materials,  or  that  the  latter  has 
wrought  those  materials  with  such  exquisite  skill,  that  they  now 
form  the  most  polished  structure  of  commercial  law,  that  the  world 
has  ever  beheld  ? 

It  is  not  a  little  remarkable,  that,  while  Lord  Mansfield  was  run- 
ning his  splendid  career,  two  eminent  scholars  on  the  continent 
were  devoting  themselves  with  equal  ardor  to  the  pursuit  of  com- 
mercial jurisprudence.  We  allude  to  Pothier  and  Emerigon  ;  the 
one,  the  author  of  the  most  finished  treatise  upon  insurance,  which 
has  yet  appeared  ;  the  other,  the  author  of  distinct  treatises  upon 
almost  all  the  branches  of  the  law  of  contracts,  including  maritime 
contracts,  equally  remarkable  for  their  brevity,  luminous  method,  and 
apposite  illustrations.*  Whether  Lord  Mansfield  was  acquainted 
with  the  works  of  either  of  these  illustrious  writers  is  uncertain. 
The  probability  is,  that  he  was  not.  Emerigon's  treatise  was  not 
published  until  near  the  close  of  his  judicial  career  ;  and  we  gather 
from  an  intimation  of  Sir  William  Jones,  in  his  Essay  on  Bailments, 
that,  at  the  time  of  the  publication  of  that  work,  in  1781,  Pothier 
was  unknown  in  England.  "  For  my  own  part,"  says  he,  "  I  am  so 
charmed  with  them  [Pothier's  treatises],  that,  if  my  undissem- 
bled  fondness  for  the  study  of  jurisprudence  were  never  to  produce 
any  greater  benefit  to  the  public  than  barely  the  introduction  of 
Pothier  to  the  acquaintance  of  my  countrymen,  1  should  think,  that 
I  had  in  some  measure  discharged  the  debt,  which  every  man, 
according  to  Lord  Coke,  owes  to  his  profession."  If,  however, 
Emerigon  and  Pothier  were  unknown  to  Lord  Mansfield,  they  have 
since  his  time  instructed  both  the  lawyers  and  the  judges  of  West- 
minster Hall.  But  there  is  yet  wanting  a  judge  of  the  generalizing 
genius  and  enterprise  of  Lord  Mansfield,  or  the  classical  enthusiasm 
of  Sir  William  Jones,  to  naturalize  them  in  that  forum.  To  the 
honor  of  America,  there  is  one  man,  once  a  chief  justice,  and  now 
a  chancellor,   (need  we  name  him  ?)   whose  acknowledged  learning 


*  The  treatise  of  Emerigon  is  entitled  Traite  des  Assurances  et  des  Contracts 
a  la  Grosse,  and  was  first  printed  at  Marseilles  in  1783.  The  treatises  of  Pothier 
were  published  at  different  times,  between  1 7(>  1  and  1772,  in  which  last  year  the 
author  died.  The  best  edition  of  his  works  is  that  printed  at  Paris  in  8  vols.  4to., 
1781.     We  have  not  been  able  to  find  any  account  of  Emerigon. 


264  REVIEWS. 

has  taught  us,  how  much  judicial  judgments  may  be  enriched  by  the 
manly  sense  of  Pothier,  and  the  acute  investigations  orEmerigon. 

We  had  intended  to  say  something  more  in  relation  to  the 
merits  of  these  authors,  and  to  have  sketched  a  critical  analysis  of 
their  works.  But  we  are  admonished,  that  we  have  already  ex- 
hausted more  time  than  we  can  properly  devote  to  such  specula- 
tions. We  quit  them  with  regret  :  but  there  are  younger  and  abler 
pens,  that  can  do  them  justice  ;  and  we  trust,  that  it  is  no  idle  dream 
to  anticipate,  that  the  next  age  of  the  law  will  find  our  accomplished 
lawyers  consulting  the  continental  jurists  with  the  same  familiarity, 
with  which  we  now  cite  Blackstone  and  Marshall. 

The  work,  which  stands  at  the  head  of  these  remarks,  and  from  a 
review  of  which  we  have  been  so  long  detained,  is,  as  the  title— 
page  purports,  a  translation  from  the  German.  We  have  not  seen 
the  original,  and,  therefore,  cannot  speak  of  the  exactness  of  the 
translation.  But  we  have  no  reason  to  doubt  its  accuracy.  Mr. 
Frick  appears  to  be  perfectly  competent  to  his  task,  both  in  learn- 
ing and  diligence  ;  and,  so  far  as  he  has  permitted  himself  to  appear 
in  the  notes,  he  has  acquitted  himself  in  a  manner  very  creditable 
to  his  talents  and  his  acquirements.  We  should,  indeed,  have  been 
better  pleased,  if  the  notes  had  been  more  extensive,  and  had  em- 
braced the  various  commercial  decisions,  and  particularly  the  prize 
decisions,  which  have  been  recently  made  in  the  United  States,  on 
the  various  topics  discussed  in  the  text  of  Mr.  Jacobsen.  We 
have  no  right,  however,  to  complain  of  this  omission  ;  and,  when  a 
gentleman  oilers  a  really  valuable  present  to  the  profession,  it 
seems  hardly  justice  or  civility  to  insist,  that  he  ought  to  have  made 
it  still  more  valuable.  Mr.  Frick  will  please,  therefore,  to  accept 
our  thanks  for  the  book,  such  as  it  is ;  and  if,  as  we  hope,  it  should 
be  favorably  received  by  the  public,  and  a  new  edition  be  called 
for,  we  think  our  hint  will  not  be  unworthy  of  his  consideration  ; 
and,  from  the  ability  of  the  present  specimen,  we  are  sure,  that  he 
will  command  the  public  confidence  in  his  enlarged  annotations. 

We  will  now  proceed  to  give  some  account  of  the  work  itself. 
We  learn  from  the  preface,  that  Mr.  Jacobsen  is  himself  a  lawyer; 
and  that,  "  Whatever  practical  jurists,  among  the  Italians,  French, 
English,  Dutch,  Danes,  and  Germans,  have  written  and  suggested 
upon  the  subject,  applicable  to  these  times;  whatever  is  contained 
in  the  sea-laws,  yet  in  force  on  the  subject;  whatever  was  to  be 
gathered  from  numerous  legal  decisions  [in  England]  ;  whatever 
was   to  be   gained  by  a  correspondence   for  years  with  men,  who 


MARITIME    LAW.  265 

have  made  the  subject  of  maritime  law  the  study  of  their  lives ; 
whatever,  in  sixteen  years'  professional  experience  in  maritime 
affairs,  has  suggested  itself  to  the  author  as  useful  or  desirable,  he 
here  proffers  as  a  part  of  the  debt,  which  every  one  owes  to  the 
country  of  his  birth,  and  to  mankind  in  general."  And  he  adds, 
"  How  inconsiderable,  as  yet,  is  our  proficiency  in  the  science  of 
maritime  law,  compared  to  our  treatises  of  municipal  law  !  The 
present,  perhaps,  is  the  first  attempt  to  offer  any  thing,  in  a  sys- 
tematic form,  relative  to  ships'  papers,  on  which  depend  the  for- 
tune and  the  peace  of  so  many  families  ;  for  the  ships'  papers, 
with  reference  to  the  maritime  laws  of  war,  have  hitherto  never 
been  treated  of  in  any  language." 

Prefixed  to  each  chapter  is  a  catalogue  of  the  authorities  and 
editions  of  the  several  authors,  who  have  discussed  the  subject- 
matter  of  that  chapter,  and  from  whose  writings  the  doctrines  have 
been  drawn  ;  and  to  the  whole  work  is  prefixed  a  catalogue  of  the 
authors,  who  have  treated  of  the  subject  generally,  or  of  the  litera- 
ture connected  with  it,  with  short  comments  upon  their  merits. 
This,  we  think,  is  a  very  useful  addition  ;  and  in  this  catalogue 
we  notice  a  number  of  works,  which  have  never  reached  us  through 
any  English  publication.  It  is  some  consolation,  however,  that,  as 
far  as  the  contents  of  these  works  are  disclosed  to  us,  they  do  not 
contain  any  very  considerable  accession  to  the  learning  already 
within  our  reach  ;  and  Mr.  Jacobsen  has  incorporated  whatever 
seemed  most  useful  into  his  own  treatise.  What  struck  us  with  some 
degree  of  surprise,  on  the  first  examination,  was  the  heavy  contri- 
butions, which  Mr.  Jacobsen  had  levied  from  the  English  authori- 
ties. He  appears  perfectly  familiar  with  the  recent  decisions  in  the 
courts  of  Westminster  Hall,  and  the  commercial  treatises  of  Abbott, 
Lawes,  Park,  and  Marshall ;  and  has  manifestly  adopted  their 
doctrines,  from  a  thorough  conviction  of  their  soundness  and  equity. 
This  is  a  flattering  distinction  ;  and  is  repaying  to  continental  Eu- 
rope the  obligations,  which  England,  in  the  earliest  stages  of  her 
law,  owed  to  the  enterprise  and  wisdom  of  the  civilians.  As  to 
the  law  of  prize,  it  is  almost  entirely  borrowed  from  the  reports  of 
the  decisions  of  the  High  Court  of  Admiralty  since  the  time  of 
Sir  William  Scott.  For  this  the  author  himself  offers  a  very 
striking  reason.  "  If,"  says  he,  "  in  the  subsequent  part  of  his 
work,  he  [the  author]  has  confined  himself  somewhat  more  exclu- 
sively to  the  doctrines  and  opinions  of  that  celebrated  man,  whose 
unrivalled  decisions  on  maritime  law,  like  the  judgments  and  opin- 
34 


266 


REVIEWS. 


ions  of  the  Roman  jurists  in  the  civil  law,  will  constitute  an  essen- 
tial part  ol  maritime  law  for  centimes  to  come  ;  it  ivas  because  the 
continental  jurisprudence  is  barren  of  examples  in  those  branches 
oj  the  subject.  As  the  commercial  law  of  Great  Britain  received 
much  of  its  perfection  through  the  decisions  of  Lord  Mansfield,  so 
the  maritime  laws  of  war  of  that  country  have  attained  their 
maturity  through  the  decisions  of  Sir  William  Scott."  This 
acknowledgment  is  extremely  honorable  to  English  jurisprudence  ; 
but  it  is  also  honorable  to  our  author,  who  shows  in  this,  as  in 
other  parts  of  his  work,  that  he  is  far  removed  from  the  prejudices 
of  his  continental  contemporaries,  and  that  he  breathes  the  genuine 
spirit  of  a  universal  jurist.  It  is  no  small  praise,  that  he  is  so  far 
above  the  visionary  doctrines  of  Hubner,  and  Schlegel,  and  the 
French  and  German  theorists.  Nor  is  this  the  least  valuable  por- 
tion of  the  work  to  an  English  lawyer.  It  is  a  remarkable  fact, 
that  no  systematic  treatise  upon  the  law  of  prize  has,  as  yet,  ap- 
peared in  England.  The  very  superficial,  hasty,  and  imperfect 
sketch  of  Mr.  Chitty  does  not  deserve  the  title,  which  it  bears, 
and  has  been  egregiously  overrated.  Our  own  country  has  been 
honored  with  a  Treatise  on  Captures,  by  Mr.  Wheaton,  which  is,  in 
every  respect,  far  superior  to  Mr.  Chitty's  ;  and,  taken  in  connex- 
ion with  his  extensive  notes  on  prize  law  in  his  Reports,  it  ap- 
proaches very  near  to  a  complete  body  of  this  important  branch  of 
law.  Are  not  the  merits  of  our  own  authors,  and  especially  of  our 
own  juridical  authors,  very  slowly  appreciated  ?  In  what  respect 
is  Mr.  Livermore's  learned  Treatise,  on  the  Law  of  Principal  and 
Agent,  inferior  to  those  recently  sent  from  the  English  bar  ? 

What,  however,  constitutes  the  principal  value  of  Mr.  Jacob- 
sen's  work  to  an  American  lawyer,  is  the  minute  accuracy  and 
fullness,  with  which  it  gives  us  the  positive  and  customary  law  of 
all  the  maritime  nations  of  the  continent.  And  this,  in  our  judg- 
ment, is  a  most  interesting,  and,  in  a  practical  view,  a  most  impor- 
tant accession  to  our  juridical  literature.  Of  the  maritime  law  of 
Russia,  Prussia,  Denmark,  Sweden,  and  Germany,  we  have  hith- 
erto known  very  little.  Yet  with  all  of  them  we  carry  on  an 
extensive  trade  ;  and  the  principles  of  their  jurisprudence  as  to 
maritime  affairs,  both  in  peace  and  in  war,  are  of  incalculable 
importance  to  our  merchants  ;  nay  more,  to  our  government.  This 
is  not  all.  A  great  variety  of  curious  and  difficult  questions  are 
perpetually  arising  in  our  judicial  tribunals,  where  the  positive 
regulations  or  usages   of  other  commercial  nations  would  greatly 


MARITIME    LAW.  267 

assist  us  in  forming  decisions,  which  should  comport  with  general 
convenience,  as  well  as  with  the  general  principles  of  law.  Many 
are  the  cases,  in  which  the  reasoning  is  so  nicely  balanced  on  each 
side,  that  a  settled  foreign  usage  ought  to  inc  n  e  the  scale.  We 
owe,  indeed,  a  full  moiety  of  our  present  commercial  law  to  the 
positive  ordinances  or  usages  of  Fiance,  Italy,  and  S,  ain,  as  they 
have  been  delivered  to  us  by  their  eminent  jurists.  They  seem 
now  inclined  to  borrow  from  us  in  return ;  and  thus,  perhaps, 
national  comity  may  gradually  establish  a  nearly  uniform  system  of 
commercial  jurisprudence  throughout  the  whole  civilized  world. 

We  have  no  hesitation,  therefore,  to  recommend  Mr.  Jacobsen's 
treatise  to  the  favorable  attention  of  our  lawyers  and  merchants. 
They  cannot  fail  to  be  greatly  instructed  by  the  perusal.  The 
learned  author  has  prepared  his  work  from  very  ample  materials, 
and  with  the  most  laborious  diligence,  and,  in  general,  with  sound 
discrimination  and  impartiality.  If  Mr.  Abbott's  treatise  were  not 
in  existence,  Mr.  Jacobsen's  would  be  indispensable  for  every 
lawyer's  library.  As  it  is,  it  will  reflect  great  light  on  points,  where 
Mr.  Abbott  is  deficient  or  unsatisfactory  ;  and  no  gentleman  ought 
to  consider  himself  thoroughly  read,  who  has  not  mastered  its 
learning. 

We  notice  in  the  translation  some  Germanisms,  which  it  was 
not,  perhaps,  easy,  without  an  awkward  circumlocution  or  para- 
phrase, to  avoid.  There  are  also  some  words,  which  have  not  yet 
acquired  a  legitimate  use  in  our  language,  such  as  "  endorsation  " 
and  "  bottomried."  There  may  be  some  reason  to  adopt  the  latter 
word,  though  innovations  are  dangerous  ;  but  there  can  be  no  such 
apology  for  the  former,  since  we  have  a  genuine  English  word 
(endorsement)  of  the  same  signification.  There  are  also  some 
errors  of  the  press  ;  one,  (in  p.  556,)  which  is  important  to  the 
sense,  and  where  the  words  should  be,  "  the  shadow  of  partiality," 
in  lieu  of  "  the  shadow  of  impartiality."  These,  however,  are  but 
specks,  which  we  have  no  inclination  to  magnify,  and  Mr.  Frick 
can  have  no  reason  to  wish  to  have  concealed. 


REVIEW 


OF  THE  REPORTS  OF  CASES  ADJUDGED  IN  THE  COURT  OF  CHANCERY  OF 
NEW  YORK,  BY  WILLIAM  JOHNSON,  COUNSELLOR  AT  LAW.  VOLS.  I,  II, 
AND   III. 


[First  published  in  the  North  American  Review,  1820.] 

Mr.  Chancellor  Kent  was  appointed  a  puisne  judge  of  the 
Supreme  Court  of  New  York,  on  the  6th  of  February,  1798 ; 
Chief  Justice  of  the  same  court,  on  the  2d  of  July,  1804  ;  and, 
upon  the  resignation  of  Mr.  Chancellor  Lansing,  succeeded  to  the 
distinguished  station  of  Chancellor  of  New  York,  on  the  25th  of 
February,  1814.  He  has  been  long,  therefore,  before  the  public 
in  a  judicial  character,  which  he  has  sustained  with  increasing 
reputation,  a  reputation,  as  pure  as  it  is  bright ;  and  he  is,  at  the 
very  moment  we  are  writing,  devoting  himself  to  the  labors  of 
jurisprudence  with  a  diligence  and  enthusiasm,  which  excite  the 
admiration  of  the  veteran  counsellor  at  the  bar,  even  more  than  of 
the  ambitious  student  just  struggling  for  distinction.  He  has 
always  been  remarkable  for  an  unwearied  attention  to  business,  a 
prompt  and  steady  vigilance,  and  a  sacred  reverence  for  juridical 
authorities.  For  him  the  easy  course  of  general  reasoning,  popu- 
lar analogies,  and  fanciful  theories,  has  no  charms.  He  does  not 
believe,  that  judicial  discretion  is  the  arHtrium  boni  judicis,  much 
less  boni  viri ;  or,  that  he  is  at  liberty  to  promulgate  rules,  either 
of  law  or  equity,  measured  by  his  own  abstract  notions  of  what  is 
fit  or  reasonable.  He  contents  himself  with  administering  the 
common  law.  as  he  finds  it,  without  the  rashness  to  presume  him- 
self wiser  than  the  law,  or  the  vanity  of  distinguishing  himself  by 
innovations.  His  life  has  been  devoted,  sedulously  and  earnestly, 
to  professional  studies.     He  has  fathomed  the  depths  and  searched 


CHANCERY    JURISDICTION.  269 

the  recesses  of  the  ancient  law,  the  black-lettered  relics  of  former 
times,  so  much  disparaged,  and  yet  of  such  inestimable  value.  He 
has  traced  back  the  magnificent  streams  of  jurisprudence  to  their 
fountains,  lying  dark  and  obscure  amidst  the  rubbish  of  monkish 
retreats,  or  stealing  silently  from  the  chivalric  heights  of  feudal 
grandeur.  His  researches  have  been,  amidst  the  dust  and  the 
cobwebs  of  antiquated  lore,  pursued  in  the  unfashionable  pages  of 
the  Year  Books,  and  Glanville,  and  Fleta,  and  Britton,  and  the 
almost  classical  Bracton.  He  has  dared  to  examine  the  Abridg- 
ments of  Brook,  and  Fitzherbert,  and  Statham  ;  books,  from 
which  the  modern  student  starts  back  with  doubt  and  apprehension, 
as  the  great  reservoirs,  whence  have  been  drawn  the  best  princi- 
ples of  modern  times,  and  whence  must  be  drawn  the  body  and 
the  soul  of  that  learning,  which  distinguishes  the  professor  from 
the  sciolist.  He  has  not  stopped  short  at  a  survey  of  the  mere 
Gothic  structures  of  the  law  ;  but  has  examined  with  eager  and 
enlightened  curiosity  the  beautiful  systems,  with  which  the  commer- 
cial law  has  been  adorned  in  our  day.  He  has  mastered  all  their 
refinements,  and  has,  in  no  small  degree,  contributed  to  their  beauty 
and  perfection.  He  has  drawn  deeply  from  the  commercial  law 
of  foreign  nations  ;  the  works  of  Straccha,  and  Roccus,  and  Valin, 
and  Pothier,  and  Emerigon  are  familiar  to  his  thoughts  and  his 
writings.  He  has  there  found  the  principles,  by  which  our  own 
jurisprudence  is  to  be  illustrated  ;  and  one  is  at  a  loss,  which  most 
to  admire,  the  incomparable  discernment  of  the  judge,  or  the 
attractive  excellence  of  the  materials.  If  his  attainments  had 
found  their  boundary  here,  they  would  have  entitled  him  to  great 
praise  ;  but  he  has  nobly  extended  his  inquiries  beyond  the  com- 
mon and  commercial  law,  and  explored  the  Roman  jurisprudence 
through  its  texts  and  commentaries  with  uncommon  acuteness  and 
accuracy.  This  has  been  done  with  no  idle  view,  to  gratify  a 
merely  speculative  curiosity,  or  to  gather  up  the  fragments  of  an- 
tiquarian fame.  Like  all  his  other  studies,  this  has  been  made 
subservient  to  the  great  purposes  of  his  life,  the  promotion  of 
justice,  and  the  establishment  of  a  solid  jurisprudence,  founded  in 
the  most  enlightened  policy.  In  his  decisions,  we  can  every  where 
trace  the  happy  use  of  that  marvellous  system  of  doctrines,  which 
Justinian  collected  with  so  much  care,  and  which  stands  unrivalled 
in  the  world  for  its  general  equity,  and  nice  adaptation  to  the  ne- 
cessities of  mankind  ;  a  system,  which  was  gradually  matured  by 
the  labors  of  jurists  and  praetors,  during  centuries,  in  which  Rome 


270  REVIEWS. 

was  the  mistress  of  the  world  ;  and  which  had  the  singular  advan- 
tage of  being  the  combined  results  of  experience,  and  general  rea- 
soning, and  judicial  interpretation,  aided  very  little  by  imperial 
rescripts,  and  rarely  marred  In  imperial  interference.  Let  those, 
who  now  doubt  the  importance  of  the  study  of  the  civil  law  by 
common  lawyers,  read  diligentl)  the  opinions  of  Mr.  Chancellor 
Kent,  and  they  will  find  all  the  objections,  raised  by  indolence,  and 
ignorance,  and  prejudice,  practically  refuted,  and  the  civil  law 
triumphantly  sustained.  They  will  perceive  the  vivid  lights, 
which  it  casts  on  the  paths  of  juridical  science  ;  and  they  will  be 
instructed  and  cheered  in  the  pursuit,  though  they  may  not  hope 
to  move  in  the  brilliant  career  of  such  a  judge  with  equal  footsteps. 
It  required  such  a  man,  with  such  a  mind,  at  once  liberal,  com- 
prehensive, exact,  and  methodical  ;  always  reverencing  authorities, 
and  bound  by  decisions  ;  true  to  the  spirit,  yet  more  true  to  the 
letter  of  the  law  ;  pursuing  principles  with  a  severe  and  scrupulous 
logic,  yet  blending  with  them  the  most  persuasive  equity  ;  —  it  re- 
quired such  a  man,  with  such  a  mind,  to  unfold  the  doctrines  of 
chancery  in  our  country,  and  to  settle  them  upon  immovable 
foundations.  Without  doubt,  his  learned  predecessors  had  done 
much  to  systematize  and  amend  the  practice  of  the  court.  But  it 
cannot  be  disguised,  that  the  general  state  of  the  profession  was 
not  favorable  to  a  very  exact  and  well  regulated  practice.  There 
were,  comparatively  speaking,  few  lawyers  in  the  country,  who  had 
devoted  themselves  to  courts  of  equity.  In  general,  the  ablest 
men  found  the  courts  of  common  law  the  most  lucrative,  as  well 
as  the  most  attractive,  for  the  display  of  their  talents.  They  con- 
tented themselves  with  occasional  attendance  at  the  chancery  bar; 
and  placed  their  solid  fame  in  the  popular  forum,  where  the  public 
felt  a  constant  interest,  and  where  the  great  business  of  the  coun- 
try was  done.  In  many  of  the  states  no  court  of  chancery 
existed.  In  others  it  was  a  mixed  jurisdiction,  exercised  by  courts 
of  common  law.  And  in  those,  where  it  was  administered  by  a  dis- 
tinct judicature,  there  is  great  reason  to  fear,  that  the  practice  was 
very  poor,  and  the  principles  of  decision  built  upon  a  rational 
equity,  resting  very  much  in  discretion,  and  hardly  limited  by  any 
fixed  rules.  In  short,  the  doctrines  of  the  courts  depended  much 
less  upon  the  settled  analogies  of  the  system,  than  upon  the  char- 
acter of  the  particular  judge.  If  he  possessed  a  large  and  liberal 
mind,  he  stretched  them  to  a  most  unwarrantable  extent ;  if  a 
cautious  and  cold  one,  the  system  fainted  and  expired  under  his 


CHANCERY    JURISDICTION.  271 

curatorship.  This  description  was  applicable,  perhaps,  without 
any  material  exceptions,  to  the  equity  jurisprudence  of  our  country  ; 
and  New  York  comes  in,  probably,  for  a  lull  share  of  it.  At  least, 
there  are  in  the  volumes  now  before  us  abundant  proofs,  that  neither 
the  practice  nor  principles  of  the  chancery  of  that  state  had,  pre- 
viously to  the  time  of  Mr.  Chancellor  Kent,  assumed  a  steady  and 
well  defined  shape.  We  see,  for  instance,  that  points  of  practice 
are  often  most  elaborately  reasoned  out  by  this  learned  chancellor, 
in  various  opinions,  as  if  the  case  stood  tie  novo  before  him,  and 
he  was  called  upon  for  the  first  time  to  apply  the  English  practice 
to  our  own.  This  could  hardly  have  occurred,  if  there  had  been 
a  constant,  settled  channel,  in  which  it  had  previously  flowed. 

Nor  is  it  difficult  to  account  for  this  state  of  things,  consistently 
with  the  highest  deference  for  the  learned  judges,  who  had  admin- 
istered equity.  In  England,  the  court  of  chancery  is,  and  for  a 
long  time  has  been,  the  most  active,  and  most  extensive  judicature 
in  the  kingdom.  From  the  existence  of  a  law  of  descents,  which 
gives  to  the  eldest  son  the  exclusive  heirship  of  real  estate,  there 
arises  a  necessity  for  complicated  marriage  settlements,  apportioning 
the  property  among  all  tiie  children,  and  looking  to  very  remote 
contingencies  for  their  completion.  The  same  circumstance  makes 
last  wills  and  testaments  extremely  intricate  and  perplexed,  and 
fills  them  with  provisions  for  younger  sons  and  daughters,  and 
remote  relations,  which  may  not  be  exhausted  in  a  century.  Hence 
we  find  complex  entails,  springing  uses,  contingent  remainders,  and 
express  or  resulting  trusts,  spreading  over  almost  every  estate  in  the 
kingdom,  and  weaving  a  network,  which,  at  last,  becomes  so  close, 
and  so  embarrassing,  that  a  private  act  of  Parliament  is  the  only 
effectual  remedy  to  disentangle  the  title.  It  is  scarcely  possible  to 
form  the  most  simple  marriage-settlement,  without  incorporating 
some  trusts  into  it.  And  as  to  last  wills,  even  if  they  furnish  no 
direct  case  for  the  application  of  chancery  jurisdiction,  which  rarely 
happens,  yet  they  almost  invariably  fall  within  the  cognizance  of 
that  court,  in  virtue  of  its  general  jurisdiction  as  to  legacies,  or  to 
compel  a  settlement  of  the  accounts,  and  a  distribution  of  the  estate. 
So  that  it  has  been  remarked,  and  probably  with  great  correctness, 
that,  in  the  course  of  half  a  century,  almost  every  estate  in  the 
kingdom  passes  under  the  judicial  review  of  the  chancellor. 

Nor  is  this  to  be  wondered  at,  when  we  consider,  that  no  trustees 
can  safely  act,  without  the  direction  of  a  court  of  equity  ;  and  that, 
in  complicated  settlements  and  wills,  there  must  be  a  great  variety 


272  REVIEWS. 

of  clauses,  whose  exact  meaning  and  extent  can  never  be  ascer- 
tained, until  they  receive  a  judicial  interpretation.  This  is  an 
inexhaustible  source  of  hostile  or  amicable  litigation  ;  and  of  itself 
would  create  more  business  than  the  diligence  and  talents  of  a 
half  dozen  chancellors  could  despatch,  within  any  reasonable  time. 
And  it  often  happens,  with  all  the  exertions  of  the  chancellor,  the 
master  of  the  rolls,  the  vice-chancellor,  the  chancery  court  of 
the  exchequer,  and  many  local  sourts  of  equity,  that  suits  of  this 
nature  are  still  pending,  after  the  lapse  of  twenty  years,  and  some- 
times survive  all  the  original  parties,  and  their  immediate  de- 
scendants and  representatives. 

It  is  fortunate  lor  our  country,  that  the  genius  of  our  insti- 
tutions, and  the  happy  structure  of  our  laws  of  descents,  by 
dividing  and  subdividing  property  among  immediate  and  remote 
relatives  by  equitable  rules,  silently  provides  for  ninety-nine  cases 
out  of  a  hundred  of  all  the  objects  of  an  anxious  parent  or  friend. 
We  hear,  therefore,  of  few  cases  of  settlements,  and  comparatively 
few  of  wills,  which  are  not  extremely  simple,  and  are  not  exhausted 
with  the  breath  of  the  first  limitations.  Entails  have  practically 
ceased  among  us,  from  the  facility,  with  which  they  may  be  turned 
into  a  fee  ;  and,  indeed,  under  the  present  circumstances  of  our 
country,  they  would  be  likely  to  generate  family  lends  and  difficul- 
ties, rather  than  to  accomplish  any  valuable  purposes.  We  may, 
therefore,  easily  see  in  the  past  circumstances  of  our  country,  very 
strong  reasons,  why  the  chancery  jurisdiction  has  hitherto  had  but 
a  limited  scope  for  its  powers  ;  and  why  its  principles  and  practice 
have  not  hitherto  assumed  a  very  scientific  cast  in  our  own  tribunals. 
It  is  but  a  few  years  ago,  that  our  common  law  courts  were  gov- 
erned by  a  very  lax  jurisprudence.  There  are  few  reports  older 
than  twenty  years  ;  and  those  few  leave  us  little  regret  for  the 
total  oblivion  cast  on  all  preceding  times  in  our  legal  annals.  There 
were,  without  doubt,  acute  and  able  lawyers,  and  learned  judges  ; 
but  they  were  few  in  number :  and  the  defects  of  the  juridical 
system  and  practice,  and  the  narrow  walks  of  business,  precluded 
any  great  improvements.  We  had  scarcely  any  commercial  law  ; 
and  very  few  contracts,  on  which  it  could  operate  ;  and  the  gener- 
alizing  spirit  of  the  present  day  had  scarcely  shed  a  doubtful  twilight 
over  us.  Our  suits  principally  respected  titles  or  trespasses  to  land, 
or  personal  wrongs,  or  penalties,  or  local  topics,  or  debt,  or  bonds, 
or  assumpsits  on  contracts  for  labor,  or  services,  or  goods  sold  in 
small    parcels.      Policies    of    insurance,    bills   of    exchange,    and 


CHANCERY    JURISDICTION.  273 

promissory  notes,  and  shipping  contracts,  and  charter  parties,  are 
the  growth  of  a  thriftier  trade,  and  more  extensive  mercantile 
enterprise.  They  have  grown  up  among  us  almost  in  our  own  day. 
Indeed;  in  England,  they  arc  not,  in  a  practical  sense,  much  older 
than  the  days  of  Lord  Holt;  and  as  to  insurance  law,  it  was  almost 
contemporaneous  with  the  reign  of  George  III.  If,  then,  our  courts 
of  common  law  were  so  limited  and  lax  in  their  practice,  it  is  not 
to  be  supposed,  that  our  chancery  courts  could  have  been  very 
exact  or  methodical.  Their  business  was  of  a  nature  not  to  attract 
the  highest  talents  ;  and,  before  the  revolution,  in  some  of  the  states, 
the  office  of  chancellor  was  but  a  political  appointment.  We  find 
it  stated  by  Mr.  Johnson,  in  the  preface  to  the  present  Reports, 
that  in  New  York,  "The  erecting  of  a  court  of  chancery,  by  an 
ordinance  of  the  2d  of  September,  1701,  to  consist  of  the  Governor 
and  Council,  rendered  it  extremely  unpopular  ;  and  frequent  but 
fruitless  attempts  were  made  by  the  Assembly  to  destroy  the  court. 
It  continued  to  be  held  under  that  ordinance,  though  little  business 
appears  to  have  been  transacted  in  it,  until  its  organization  in 
March,  1778,  under  the  constitution  of  our  state."  What  is  true 
with  respect  to  the  chancery  of  New  York,  is  probably  true  with 
respect  to  most  of  the  other  equity  courts  in  the  Union.  They 
had  little  business  before  the  revolution.  The  revolution  itself  was 
not  a  season  for  building  up  a  judicial  establishment ;  and  the  times 
that  succeeded,  until  after  the  adoption  of  the  constitution  of  the 
United  States,  were  times  of  so  much  difficulty,  and  distress,  and 
want  of  capital,  and  want  of  confidence,  that  there  was  little  incli- 
nation to  become  either  an  equity  lawyer,  or  an  equity  judge.  In 
better  times,  many  years  must  have  elapsed  before  there  was  a 
regular  current  of  business  ;  and  that  was,  from  obvious  causes, 
slow  and  uncertain,  and  not  always  the  clearest.  Without  going 
more  into  detail,  it  may  at  once  be  seen  why,  even  in  the  busy 
state  of  New  York,  we  are  driven  almost  to  the  times  of  Mr.  Chan- 
cellor Kent,  in  our  search  for  a  systematic  administration  of  equity. 
The  fault  was  not  in  the  learned  chancellors,  but  in  the  materials, 
and  in  the  organization  of  the  system,  and  the  difficulties  of  the 
times,  and  the  lax  state  of  the  profession. 

It  may,  perhaps,  be  asked,  as  it  has  been  heretofore  asked, 
Whether  courts  of  equity  be,  on  the  whole,  of  any  serious  importance 
in  our  country,  considering  that  many  of  the  most  fertile  sources  of 
litigation  are  here  completely  dried  up,  or  spring  up  in  courts  of 
common  law  ?  We  have  already  alluded  to  some  of  these  sources. 
35 


274  REVIEWS. 

But,  before  we  proceed  to  answer  this  inquiry,  it  may  not  be  im- 
proper to  advert  to  a  few  more  of  tbe  subjects  of  chancery  juris- 
diction in  England,  which  arc  not  likely  to  have  an  extensive 
operation  here,  or,  at  least,  to  be  drawn  here  within  the  same  juris- 
diction. We  may  at  once  dismiss  all  consideration  of  the  common 
law  jurisdiction  of  the  chancellor,  such  as  his  authority  of  granting 
writs  of  scire  facias  to  repeal  patents,  petitions  and  monstransde  droit, 
traverses  of  office,  writs  of  scire  facias  upon  recognisances,  See 
These  properly  fall  within  the  cognizance  of  our  courts  of  common 
law,  and  are  no  appendages  of  chancery.  In  respect,  also,  to  the 
statutable  jurisdiction  of  the  chancellor,  such  as  that  under  the 
bankrupt  laws,  little  need  be  said  ;  because  it  must  depend  upon  the 
will  of  the  legislature,  to  whom  shall  be  entrusted  the  summary 
powers  exercised  in  such  cases.  Another  important  branch  of  the 
chancellor's  jurisdiction  is  exercised  partly  under  statutes,  and 
partly  under  his  general  chancery  authority,  and  partly  under  his 
special  authority,  as  the  immediate  delegate  of  the  crown,  acting 
as  parens  patrice.  We  allude  to  his  jurisdiction  in  cases  of  charita- 
ble uses,  a  subject  of  great  extent  and  difficulty,  and  of  the  deepest 
interest  to  the  whole  community.  The  English  system,  on  this 
subject,  has  been  built  up  with  wonderful  ingenuity  ;  and  the  statute 
regulations  are  entitled  to  our  most  serious  consideration.  Mr. 
Wheaton,  in  his  valuable  reports,  adorned,  as  they  are,  with  much 
of  his  own  exact  learning,  has  given  us  a  sketch  of  the  English 
law  of  charities  in  the  appendix  to  his  fourth  volume.  We  merely 
mention  the  fact,  with  the  recommendation  to  all  our  legal  readers, 
and  particularly  to  those,  who  are,  or  expect  to  be,  legislators, 
to  peruse  it  with  the  utmost  diligence,  as  worthy  of  their  most 
serious  reflection.  Having  alluded  to  the  great  statute  of  charita- 
ble uses  of  9  Geo.  II.,  ch.  36.,  he  emphatically  concludes  with  the 
following  remarks  —  "And  it  deserves  the  consideration  of  every 
wise  and  enlightened  American  legislator,  whether  provisions  similar 
to  those  of  this  celebrated  statute  are  not  proper  to  be  enacted  in 
this  country,  with  a  view  to  prevent  undue  influence  and  imposition 
upon  pious  and  feeble  minds,  in  their  last  moments,  and  to  check 
that  unhappy  propensity,  which  sometimes  is  found  to  exist  under  a 
liiL'Mted  enthusiasm,  the  desire  to  gain  fame,  as  a  religious  devotee 
and  benefactor,  at  the  expense  of  all  the  natural  claims  of  blood 
and  parental  duty  to  children."  —  Already  charitable  donations,  to 
an  immense  extent,  have  been  bestowed  in  our  country,  without 
any  check  being   interposed  by   the   legislature.     We  are  in  some 


CHANCERY    JURISDICTION.  275 

danger,  and  from  the  same  natural  causes,  which  are  for  ever  at 
work  in  all  ages,  and  in  all  countries,  of  having  our  most  valuable 
estates  locked  up  iii  mortmain,  and  our  surplus  wealth  pass  away 
in  specious  or  mistaken  charities,  founded  upon  visionary  or  useless 
schemes,  to  the  impoverishment  of  friends,  and  the  injury  of  the 
poor  and  deserving  of  our  own  countrymen.  Let  us  but  look  for 
a  moment  at  England,  where,  notwithstanding  all  the  legislative  and 
judicial  guards,  interposed  from  time  to  time,  abuses  of  the  most 
disgraceful  and  dangerous  nature  have  grown  up,  under  the  admin- 
istration of  their  charities  by  trustees  and  by  corporations,  and 
which  parliament  are  now  seeking  to  redress  ;  and  let  us  ask  our- 
selves, whether  we  can  hope  for  a  better  state  of  things,  when  we 
have  not  a  single  guard,  legislative,  executive,  or  judicial,  either  to 
check  improper  donations,  procured  by  fanatical  or  other  delusions, 
or  to  secure  the  just  administration  of  them  from  the  most  gross 
abuses.  We  are  not  aware,  that  any  adequate  authority  at  present 
exists  in  any  of  the  United  $tates  for  such  purposes  ;  and,  certainly, 
in  our  own  state  there  is  not  a  pretence  to  say,  that  we  have  any 
real  substantial  security.  A  chancery  jurisdiction  on  this  subject, 
to  the  fullest  extent,  seems  indispensable  to  insure  justice,  as  well 
to  the  intentions  of  the  benevolent  donors,  as  to  the  objects  of  the 
donations.  Remedies,  in  courts  of  common  law,  are,  and  must  for 
ever  be,  utterly  inefficient  and  illusory. 

We  have  been  unexpectedly  led  to  these  remarks  by  a  deep 
sense  of  their  immediate  and  pressing  importance,  and  we  quit  the 
subject  with  great  reluctance,  believing,  that  a  full  development  of 
it  could  not  fail  to  be  interesting  to  all  well-wishers  to  our  country, 
to  statesmen,  to  lawyers,  to  pious  and  benevolent  men,  and  to  those, 
who  love,  and  those,  who  cultivate  literature,  the  arts,  or  the  scien- 
ces. But  this  is  not  the  time  or  occasion  for  such  a  discussion. 
At  present,  we  must  go  dryly  on  with  our  examination  of  the  chan- 
cery jurisdiction.  We  may,  however,  say,  that,  as  long  as  charitable 
uses  shall  exist,  (and  in  a  pious,  refined,  and  elegant  society,  they 
must  always  be  cherished,)  there  is  a  necessity  to  follow  up  their 
administration  with  the  cogent  process  of  chancery  visiting  them, 
to  quicken  their  diligence  and  their  virtue. 

There  is  another  authority,  which  has  been,  from  time  imme- 
morial, or  at  least  for  several  hundred  years,  exercised  by  the 
chancellor,  which  is  said  to  belong  to  him,  not  in  his  official 
capacity,  but  as  personal  delegate  of  the  crown.  We  allude  to  his 
jurisdiction  in  the  cases  of  idiots  and  lunatics,  as  to  the  guardianship 


276  REVIEWS. 

of  their  persons,  and  the  management  of  their  estates,  and  the 
protection  of  their  rights.  Of  an  analogous  character  is  the  au- 
thority of  the  chancellor,  as  to  the  care  of  infant-.  The  king,  as 
parens  patruc,  is  entitled  to  the  care  of  infants  :  and  this  care  is 
delegated  hy  him  to  the  court  of  chancery,  and,  as  it  seems,  to  this 
court  alone.  The  court  of  chancery,  therefore,  exercises  a  most 
extensive  jurisdiction,  as  to  the  custody  of  the  person  and  estates 
of  infants,  their  maintenance,  and  marriages.  Jn  our  country,  as  well 
from  public  convenience,  as  from  considerations  drawn  from  a  respect 
for  private  interests,  this  jurisdiction  generally  belongs  to  probate 
and  orphans'  courts,  which  are  instituted  in  every  small  district  or 
county,  for  the  purpose  of  granting  administrations,  guardianships, 
&-C  These  tribunals  are  so  domestic,  and  popular,  and  conven- 
ient, that  it  is  highly  probable  they  will  always  retain,  if  not  an 
exclusive  possession  of  this  jurisdiction,  at  all  events,  such  a  con- 
current jurisdiction,  as  will  absorb  the  great  mass  of  cases,  and,  for 
general  purposes,  be  as  efficacious  and  salutary,  as  a  court  of 
chancery.  In  New  York,  however,  it  appears  that  the  chancery 
exercises  a  general  superintending  authority  in  these  cases,  in  many 
respects  analogous  to  that  in  England.  In  New  England  we 
believe  the  probate  courts  exercise  an  exclusive  authority  as  to 
the  appointment  and  removal  of  guardians,  and  a  concurrent,  and 
sometimes  an  exclusive,  authority  in  the  settlement  of  their 
accounts. 

There  is  another  class  of  cases,  of  every  day's  occurrence  in 
England,  which  belongs  exclusively  to  the  court  of  chancery, 
and  must  probably  have  an  existence  in  every  court  of  chancery 
acting  ex  aquo  ct  bono.  We  allude  to  bills  for  specific  per- 
formance of  contracts,  in  contradistinction  to  mere  actions  for  dama- 
ges for  the  breach  of  such  contracts.  The  doctrines  of  courts  of 
equity  on  this  head  have  spread  into  numerous  branches ;  and  the 
system  itself  has  become  not  a  little  complex  and  unsatisfactory. 
The  notion,  that  a  court  of  equity  is  at  liberty  to  dispense  with  a 
strict  compliance  with  the  terms  of  the  contract,  when  no  accident, 
mistake,  or  fraud,  in  a  strict  sense,  has  intervened  to  prevent  an 
exact  compliance  by  the  parties ;  and  that  the  court  may  interfere 
with  these  terms,  and,  as  to  time,  dispense  with  them  altogether, 
upon  the  footing  of  mere  discretion  ;  is  so  repugnant  to  a  just  con- 
ception of  the  obligation  of  contracts,  and  of  the  right  of  the  par- 
ties to  stand  upon  their  own  stipulations,  as  well  as  to  general 
convenience  and  justice,  that  one  wonders,  that  such  an  extraordi- 


CHANCKRY    JURISDICTION.  277 

nary  authority  should  have  ever  been  assumed  or  tolerated.  Yet 
it  has  become  an  inveterate  rule  in  equity,  that  time  is  not,  or  at 
least  may  not  be,  of  the  essence  of  a  contract ;  and,  consequently, 
that  a  party  may  be  entitled  to  relief  and  a  specific  performance, 
if  a  contract  for  the  sale  of  lands  be  decreed,  although  he  has 
utterly  failed  to  comply  with  the  conditions  of  sale,  within  the 
period  stipulated  by  the  express  letter  of  his  contract  ;  and  this, 
too,  to  make  the  case  stronger,  rests  not  on  a  notion,  that  there  has 
been  fraud,  or  circumvention,  or  inevitable  accident,  (casus  fortuitus,) 
or  mutual  and  innocent  mistake,  but  upon  the  mere  will,  we  had 
almost  said  caprice,  of  chancery,  acting  upon  a  thousand  fancies 
of  imaginary  hardship.  The  old  doctrine  on  this  subject  was  most 
extravagant ;  and  it  seems  the  inclination  of  the  present  times  to 
narrow  the  ground,  and  reduce  it  more  to  principles  of  common 
reason  and  convenience.  But  still,  there  is  enough  of  difficulty 
and  doubt  in  the  cases,  that  arise,  to  make  us  wish  for  a  thorough 
reformation  of  the  whole  doctrine  ;  and  to  put  it  upon  this  intelli- 
gible ground,  that,  where  the  party  seeks  a  specific  performance, 
he  must  show  a  strict  compliance  with  the  terms  of  the  contract, 
or  stand  for  relief  upon  some  other  real  principle  of  equity.  We 
ourselves  have  known  specific  performance  decreed  of  purchases 
of  real  estate  after  twenty  years  from  the  time  of  the  contract, 
when  the  property  had  changed  its  value  exceedingly,  three  or  four 
times  in  opposite  ways,  during  the  intervening  period.  We  have 
also  known  specific  performance  sought,  and  reluctantly  denied, 
after  the  lapse  of  more  than  thirty  years,  when  all  the  original  par- 
ties were  dead,  and  the  land,  which  was  a  wilderness,  was  become 
a  settled  and  cultivated  country.  If  there  ever  was  a  case  for  a 
statute  prohibition  of  suits,  except  they  are  brought  within  a  very 
short  period,  as  a  lawyer  might  say,  by  journeys'  accounts,  bills  of 
this  nature  would  furnish  the  most  striking  occasion  for  salutary 
legislation. 

Still  it  is  not,  on  the  whole,  probable,  that  this  head  of  equity 
will,  in  our  country,  ever  embrace  a  very  extensive  jurisdiction. 
The  reasons,  which  in  England  have  conduced  to  raise  up  so  many 
suits  of  this  nature,  do  not,  and  perhaps  never  will,  exist  in  a  cor- 
responding degree  in  our  country.  In  England,  from  causes  already 
attended  to,  conveyancing  has  become  extremely  complicated  ; 
titles  are  buried  under  loads  of  parchment ;  and  the  intricacies  of 
the  trusts  and  uses,  present  and  future,  springing  and  resulting,  of 
powers,  gross  or  appurtenant,  of  entails,  and  contingent  provisions, 


278  REVIEWS. 

(especially  if  the  estate  lias  passed  through  two  or  three  great 
landholders'  hands,  or  has  been  linked  to  a  marriage-settlement,) 
become  so  perplexing,  that  it  requires  a  vast  deal  of  time  and 
money  to  evolve  its  material  muniments,  and  arrive  at  any  thing 
like  certainty,  even  as  to  the  transmission  of  the  title.  Now  and 
then,  to  be  sure,  a  fine  or  a  common  recovery,  cures  all  latent 
defects,  and  gives  a  new  start  to  the  title.  But  in  many  cases  these 
remedies  are  impracticable,  and  sometimes  they  fail,  (as  unfortu- 
nately happens  in  respect  to  remedies  administered  lor  physical 
diseases,)  even  in  the  rno^t  skilful  hands,  and  a  latent  taint  first 
infects,  and,  in  the  hands  of  a  cunning  solicitor,  soon  eats  up  or 
destroys  the  title,  though  cased,  as  it  were,  in  its  triple  mail  of 
parchment,  and  surrounded  by  its  concords  and  its  vouchees. 
Hence,  it  rarely  happens,  upon  the  purchase  of  an  (state  in  En- 
gland, if  it  be  of  any  considerable  value,  that  conveyances  are 
immediately  executed.  The  title-deeds  are  first  to  be  thoroughly 
examined,  through,  perhaps,  a  century  ;  and  diligent  search  made, 
not,  as  we  might  hastily  imagine,  into  a  k\v  short  deeds  of  a  folio 
page  in  length,  but  into  volumes  of  dark  and  mouldy  parch- 
ment, rolled  up  like  ancient  manuscripts,  and  requiring  as  much 
time  to  unravel  and  study  them.  Abstracts  of  these  titles  are  to 
be  made  out,  and  laid  before  counsel  for  their  consideration  and 
opinion.  If  a  doubt  of  fact  or  law  occurs,  the  search  is  to  be 
renewed  ;  outstanding  terms  of  years  are  to  be  ascertained  to  be 
either  satisfied  and  attendant  on  the  inheritance,  or  to  be  subsi>tin^ 
for  trusts,  which  are  exhausted,  or  still  to  be  fulfilled  ;  mortgages  are 
to  be  traced,  either  as  dead  or  living  fungi  on  the  trunk  of  the 
title,  through  one  or  two  generations ;  the  records  of  courts  are  to 
be  searched  for  liens  of  judgments  and  conveyances  ;  and  it  is  to 
be  ascertained,  what  limitations  have  taken  effect  or  failed,  and  at 
what  time,  and  under  what  circumstances.  It  is  to  be  considered, 
too,  that,  in  general,  deeds  of  lands  are  not  recorded,  as  in  our 
country  ;  so  that  it  is  not  easy  to  trace  even  the  deeds,  through 
the  various  depositories.  And,  finally,  a  suit  in  chancery  for  a 
discovery  often  becomes  necessary,  to  compel  a  reluctant  or  obsti- 
nate party  to  discover  the  title,  by  which  he  claims  an  interest  in 
the  land,  or  which  he  unjustly  withholds  from  the  legitimate 
owner.  These  are  not  exaggerations  of  the  actual  state  of  things, 
though,  perhaps,  to  a  careless  observer,  or  a  young  lawyer,  accus- 
tomed merely  to  our  local  practice,  it  might  seem  otherwise.  A 
treatise  has  already  appeared,  or  is  just  about  appearing,  (and  a 


CHANCERY    JURISDICTION.  279 

most  important  one  in  a  practical  sense  it  must  be,)  on  the  mere 
subject  of  abstracts  of  titles,  showing  what  a  purchaser  has  a 
right  to  require,  and  what  a  vender  is  bound  to  give,  as  to  the 
history  of  his  title  to  the  land,  before  he  can  call  on  the  former 
for  payment  or  specific  performance.  From  these  remarks  it  must 
abundantly  appear,  how  it  happens,  that  in  England  few  important 
purchases  are  made,  except  by  an  executory  contract,  or,  in  other 
words,  a  contract  of  sale,  in  which  there  are  covenants  to  give  a 
good  title,  on  one  side,  and,  on  the  other,  to  accept,  and  pay  the 
purchase  money  at  a  stipulated  period.  From  unforeseen  difficul- 
ties, from  unexpected  occurrences,  and  from  indolence,  or  a  lax 
reliance  upon  the  redeeming  power  of  chancery,  it.  frequently 
happens,  that  the  conditions  of  the  sale  are  not  complied  with  ; 
and  thus  the  parties  are  prepared  for  a  suit  in  chancery.  In  due 
time  it  comes,  when  the  parties  are  a  little  quickened  in  their 
course,  and  after  reference  to  a  master  in  chancery  to  report 
upon  the  title,  and  other  interlocutory  proceedings,  a  decree  in  the 
course  of  four  or  five  years  is  obtained,  requiring  that  to  be  done, 
which  some  or  all  of  the  above  causes  had  contributed  to  leave 
utterly  undone. 

Many  of  our  readers,  we  dare  say,  remember  the  following  re- 
marks of  Tristram  Shandy :  "  Upon  looking  into  my  mother's 
marriage-settlement,  in  order  to  satify  myself  and  reader  in  a  point 
necessary  to  be  cleared  up,  before  we  could  proceed  any  farther  in 
this  history  —  /  had  the  good  fortune  to  pop  upon  the  very  thing 
I  wanted,  before  I  had  read  a  day  and  a  half  straight  forwards  — 
it  might  have  taken  me  up  a  month.''''  If  we  have  at  all  impressed 
our  readers  with  our  own  views,  they  will  begin  to  perceive  that, 
what  they  took  for  the  coloring  of  romance,  a  bright  and  beaming 
fiction,  was,  or,  at  least,  might  have  been,  like  many  of  Sterne's 
most  beautiful  and  touching  sketches,  a  mere  matter  of  fact. 
There  are,  without  doubt,  many  titles  in  England,  that  could  not 
be  thoroughly  investigated  even  upon  parchment,  without  months 
of  close  and  vigorous  study. 

Now  the  state  of  things  is,  as  we  all  know,  very  different  in  our 
own  country.  Titles  are  generally  very  simple,  and,  from  obvious 
causes,  will  probably  always  remain  so,  among  the  bulk  of  our 
landholders.  A  few  hours  or  days  of  diligent  study  will  generally 
give  us  all,  that  is  worth  knowing,  as  to  the  titles  of  estates  offered 
for  sale.  In  cases  of  sales,  the  deeds  of  conveyance  are  usually 
contemporaneous  with  the  contract  of  sale.     In  cases,  where  it  is 


280  REVIEWS. 

Otherwise,  the  contract  contain-  few  provisions,  and  the  period  for 
its  fulfilment  is  rarely  distant :  and  at  the  stipulated  period,  it  is 
usually  cither  fulfilled,  or  abandon*  d  altogether,  or  a  new  contract 
is  substituted.  This  is  so  generally  true  or  at  least  a  specific  per- 
formance is  so  little  insisted  on,  that  bills  for  this  purpose  are  of  not 
very  frequent  occurrence  in  states,  accustomed  to  the  exercise  of 
chancery  jurisdiction.  And  we  believe  and  hope,  that  this  happy 
state  of  things  will  long  continue.  A  strict  equity  on  this  subject 
is  the  best  equity.  It  discourages  sloth,  and  chicanery,  and  man- 
agement;  compelling  parties  to  forego  the  unjust  advantage  of 
speculating  on  the  future  chances  of  ;i  profitable  rise  in  the  value 
of  estates,  contracted  to  he  purchased:  if  they  rise,  then  at  the 
fortunate  moment,  long  after  the  lime  fixed  for  the  performance  of 
the  contract  is  gone  by,  to  insist  upon  a  specific  performance  ;  if 
they  fall,  then  to  leave  the  property  to  the  owner,  with  a  claim  for 
damages,  or  a  suit  in  chancery  on  his  hands.  There  is  so  much 
o-ood  sense  in  the  remarks  of  Mr.  Justice  Livingston  on  this  sub- 
ject, in  Hepburn  v.  Auld,  (5  Cranch,  R.  262,)  that  we  cannot 
forbear  to  quote  them.  The  learned  Judge  on  that  occasion  said, 
"  The  remedy  by  a  decree  for  the  specific  performance  is  a  de- 
parture from  the  common  law,  and  ought  to  be  granted  only  in 
cases,  where  the  party,  who  seeks  it,  has  strictly  entitled  himself  to 
it.  It  is  said,  that,  by  the  English  authorities,  the  lapse  of  time 
may  he  disregarded  in  equity,  in  decreeing  a  specific  execution  of 
a  contract  for  land,  lint  there  is  a  vast  difference  between  con- 
tracts for  land  in  that  country  and  in  this.  There  the  lands  have 
a  known,  fixed,  and  stable  value.  Here  the  price  is  continually 
fluctuating  and  uncertain.  A  single  day  often  makes  a  great 
difference  ;  and,  in  almost  every  case,  time  is  a  material  circum- 
stance." 

Having  glanced,  in  a  cursory  manner,  at  some  of  the  subjects  of 
equity  jurisdiction,  which  will  he  found  of  hut  limited  application 
in  the  United  States,  we  may  now  turn  toother  subjects,  in  which 
it  will  for  ever  operate  with  a  constant  and  salutary  influence. 
These  are  cases,  where  relief  becomes  necessary,  from  accident,  or 
mistake  of  the  parties  ;  cases  of  complicated  accounts,  whether 
between  partners,  or  factors,  or  merchants,  or  assignees,  or  execu- 
tors  and  administrators,  or  bailees,  or  trustees;  cases  of  fraud, 
:i<~iniiini!  myriads  of  vivid  or  of  darkened  hues,  and  as  prolific  in 
their  brood,  as  the  motes  floating  in  sunbeams;  cases  of  trust  and 
confidence,  spreading    through   all    the    concerns  of   society,   and 


CHANCERY    JURISDICTION.  281 

sinking  their  roots  deep  and  firm  through  all  the  foundations  of 
refined  life  and  domestic  relations ;  cases,  where  bills  of  discovery 
are  indispensable  to  promote  public  justice  ;  and,  lastly,  cases, 
where  bills  of  injunction  are  the  only  solid  security  against  irrepa- 
rable mischiefs  and  losses.  Some  other  cases  might  be  mentioned  ; 
but  those  above-named  must  constitute  the  body  of  every  equity 
jurisprudence  adapted  to  our  country.  And,  in  the  times  to  come, 
they  will  probably  give  ample  employment  for  all  the  learning, 
and  acuteness,  and  diligence  of  the  ablest  chancellors,  in  states 
where  courts  of  equity  are  established. 

The  inquiry,  then,  whether  courts  of  equ'ty  are,  on  the  whole, 
of  any  serious  importance  to  our  country,  is,  in  some  measure, 
answered  by  a  mere  reference  to  the  subjects  of  its  jurisdiction.  Are 
these  of  any  serious  concern  to  societies  organized  as  ours  are  ?  Is 
it  important  to  administer  substantial  justice,  to  suppress  frauds, 
to  relieve  against  inevitable  casualties,  to  succour  the  injured,  to 
interpose  preventive  checks  against  malice  and  oppression,  or  mis- 
taken claims  of  rights  ? 

But  it  may  be  asked,  why  all  these  objects  are  not,  and  may  not 
be,  as  fully  accomplished  by  courts  of  law  ?  To  a  certain  extent 
they  undoubtedly  are  accomplished  by  these  courts  ;  for  it  would 
be  strange  if  courts,  created  for  the  administration  of  justice, 
should  wholly  fail  to  answer  the  purposes  of  their  institution. 
The  true  inquiry,  therefore,  is  not,  whether  they  are  not  of  very 
great  utility,  which  will  be  admitted  by  all  persons  of  reasonable 
intelligence  and  honesty  ;  but  whether  they  accomplish  all,  that,  in 
a  refined  and  elevated  system  of  jurisprudence,  it  is  desirable  to 
attain.  rVow  we  venture  to  say,  that  no  person  of  competent  skill 
in  the  science  of  law,  or  of  comprehensive  knowledge  as  a  states- 
man, can  fairly  answer  in  the  affirmative.  There  are  many  cases, 
in  which  the  parties  are  without  remedy  at  law,  or  in  which  the 
remedy  is  wholly  inadequate  to  the  attainment  of  justice.  Courts 
of  law  proceed  by  certain  established  forms,  and  administer  certain 
kinds  of  remedies  ;  their  judgments  are  almost  invariably  general, 
for  the  plaintiff  or  for  the  defendant.  If  a  case  arise,  in  which 
the  remedy  already  existing  at  law  is  inapplicable,  or  the  established 
forms  cannot  be  pursued,  there  is  an  end  of  relief.  Now  it  is 
very  easy  to  see,  that  such  cases  must  frequently  arise  ;  for  human 
actions,  and  contracts,  and  torts,  assume  an  infinite  variety  of  shapes, 
and  become  fashioned  by  an  infinite  variety  of  circumstances.  The 
relief  must,  in  many  of  these  cases,  be  necessarily  upon  principles 
36 


282  REVIEWS. 

of  equity  of  a  mixed  nature,  and,  to  a  certain  degree,  in  favor  of 
both  of  the  parties.  It  may  be  wholly  unjust  to  grant  the  plain- 
tiff all,  that  he  asks,  and  as  unjust  to  dismiss  his  suit  without  any 
relief.  The  parties  in  the  defence,  too,  may  have  different  rights, 
and  different  equities;  and  a  judgment  againsl  them  in  the  aggre- 
gate, or  without  adjusting  these  equities,  might  lead  to  the  most 
mischievous  results.  Now  a  court  of  law  cannot  shape  its  judg- 
ments according  to  interfering  equities  of  this  sort.  It  cannot 
mould  them,  so  as  to  impose  conditions  and  exceptions  on  the  tights 
of  one  party,  and  give  effectual  aid  to  the  interests  of  the  other. 
It  can  only  pronounce,  whether  the  plaintiff  has,  or  has  not,  a  legal 
cause  of  action,  and  sustain  the  suit,  or  dismiss  it,  accordingly. 
Farther,  a  court  of  law  cannot  grant  specific  relief.  It  can,  with 
few  exceptions,  award  damages  only.  These  are,  in  many  cases, 
utterly  worthless,  as  a  compensation  or  a  remedy.  If  in  some 
cases,  as  in  ejectments,  real  actions,  and*  replevins,  it  acts  in  rem, 
it  touches  only  the  gross  and  palpable  interests  of  property  ;  but  it 
cannot,  and  does  not  pretend  to  reach  the  subtile  rights  growing  out 
of  incidental  trusts,  or  equitable  claims  and  liens.  If  we  are  still 
pursued  by  the  inquiry,  why  courts  of  law  may  not  do  all  these 
things  ;  we  answer,  that  they  may  ;  but  it  must  be  by  a  change  of 
their  organization  and  character;  and  by  investing  them  in  form 
and  in  fact  with  all  the  forms  of  a  court  of  equity.  While  they 
remain  with  their  present  powers  and  distinctive  character,  they  are 
prohibited  by  the  cogent  mandates  of  the  law  from  such  unhal- 
lowed usurpation.  In  short,  such  an  inquiry  might  be  at  once 
stopped  by  a  question  of  another  sort ;  Why  may  not  courts  of 
equity  perform  all  the  functions  of  a  court  of  law  ?  But  the  true 
answer  is,  that  each  is  adapted  to  its  own  objects,  and  cannot  ac- 
complish the  objects  of  the  other,  without  breaking  in  upon  all  the 
settled  analogies  of  the  common  law,  and  shaking  its  oldest  and 
most  venerable  foundations.  He,  who  is  bold  enough  for  such  an 
undertaking,  may  applaud  himself,  as  possessing  the  temerity  of 
Phaeton,  with  the  perfect  certainty  of  not  escaping  his  fate. 

We  have  yet  a  few  words  to  say  as  to  the  question  of  the  gene- 
ral utility  of  courts  of  equity,  which  we  the  more  readily  offer  at 
the  present  moment,  because,  if  a  convention  should  be  called  to 
revise  the  constitution  of  this  state,  it  is  not  improbable,  that  a 
proposition  will  be  made  to  provide  for  the  distinct  and  independ- 
ent establishment  of  such  a  court.  At  all  events,  the  subject  will 
more   and  more  engage  the   attention  of  the  legislature,  as  well  as 


CHANCERY    JURISDICTION.  283 

of  the  profession  of  the  law ;  and  it  is  very  desirable,  whatever 
may  be  the  result,  to  act  on  such  subjects  with  all  the  light,  which 
experience  or  general  reasoning  may  throw  in  our  path. 

And  we  think,  in  the  first  place,  that,  if  a  system  of  equity 
jurisprudence  is  to  be  introduced  into  this  Commonwealth,  its 
utility  will  principally  depend  upon  the  nature  of  the  system,  which 
we  take  for  our  guide.  If,  for  instance,  we  take  the  equity  juris- 
prudence of  England,  or,  which  is  the  same  thing,  of  New  York, 
so  far  as  it  is  applicable  to  our  situation,  and  adhere  to  it  with  a 
rigid  and  undeviating  firmness,  following  closely  its  principles,  and 
walking  within  its  acknowledged  limits,  there  can  be  no  doubt,  that 
it  would  be  a  real  blessing.  But  it  cannot  be  disguised,  that  there 
is  too  strong  a  tendency,  not  merely  in  the  legislative  bodies,  but 
in  some  of  the  courts  of  law,  and  still  more  in  some  of  the  courts 
of  equity  in  the  United  States,  to  give  a  popular  cast  to  our  juris- 
prudence ;  to  make  it  a  sort  of  arbitration-law ;  or  to  decide  cases 
upon  their  own  peculiar  circumstances,  without  reference  to  any 
general  principles.  Now  this  is  precisely  the  worst  state  of  things, 
both  for  the  profession  and  for  the  public  ;  and  yet,  in  popular 
governments,  the  mass  of  the  community  are  most  unaccountably 
wedded  to  it.  The  maxim  of  common  sense,  as  well  as  of  pro- 
found investigation,  is,  Misera  est  servitus,  ubi  jus  est  vagum  aut 
incertum.  And  yet,  what  can  more  tend  to  perpetuate  this  uncer- 
tainty, than  to  escape  from  exact  and  leading  principles,  and  to 
plunge  into  decisions  upon  all  the  circumstances  of  cases  ?  It 
is  a  very  easy,  but  a  very  dangerous  course,  and  often  occasions 
apostacy  from  the  law.  Mr.  Justice  Buller  has,  somewhere,  em- 
phatically said,  that  he  had  a  dread  of  hard  cases  ;  they  were  the 
shipwrecks  of  the  law.  The  same  observation  applies  quite  as 
forcibly  to  the  practice  of  mixing  up  all  sorts  of  considerations  and 
circumstances  in  judicial  decisions.  It  confounds  all  clear  dis- 
tinctions of  right  and  wrong,  and  bewilders  and  sometimes  betrays 
us  into  unfrequented  labyrinths,  where  there  is  not  a  single  thread 
of  the  law  to  guide  us  onwards,  and  a  thousand  spectres  prevent 
us  from  retracing  our  steps.  In  respect  to  equity  jurisprudence, 
where  so  much  is  necessarily  left  to  discretion,  (we  mean  to  judicial, 
not  to  arbitrary  discretion,)  it  is  of  infinite  moment,  that  it  be  ad- 
ministered upon  determinate  principles.  Lord  Camden,  on  one 
occasion,  protested  in  strong  and  indignant  eloquence  against  the 
exercise  of  such  discretion,  which,  he  significantly  observed,  was 
the  length   of  my  Lord   Chancellor's   foot.     Without   meaning  to 


284  REVIEWS. 

become  his  followers  in  this  protest,  wc  have  no  hesitation  in 
declaring  our  opinion,  that  the  boundary  cannot  he  too  sedulously 
marked  out,  or  too  watchfully  guarded.  \i'  a  court  of  chancery 
be  at  liberty  to  deal  in  all  sorts  of  inquiries,  as  to  mere  hardship, 
inconvenience,  and  conjectural  imposition  ;  if  it  may  indulge  in 
notional  equities,  upon  its  own  views  of  what  may  be  fair,  and 
reasonable,  and  according  to  good  morals  between  the  parties  ;  if 
it  may  remove  the  barriers  and  bars  of  the  law,  because  there  may 
not  be  much  honor  or  honesty  in  a  party's  availing  himself  of  their 
protection;  if  it  may  cover  up  deviations  from  settled  rules,  by 
encouraging  lax  practices,  and  aiming  to  cure  all  the  blunders  of 
unskilful  or  rash  persons  ;  —  we  have  as  little  hesitation  in  declaring, 
that  we  think  Massachusetts  is  better  without  such  a  court.  We 
have  now,  at  least,  the  security  of  settled  rules  to  guide  us  to  our 
claims  of  property.  We  are  accustomed  to  considerable  exactness 
and  regularity  in  the  transaction  of  our  business.  We  know  what 
our  remedies  are,  if  we  pursue  the  usual  forms  of  completing  con- 
tracts ;  and,  what  is  a  still  more  powerful  admonition,  we  know 
what  they  are  not,  if  we  neglect  to  give  certainty  and  accuracy  to 
our  contracts.  If  we  mean  to  be  secure,  we  now  take  the  proper 
steps  to  give  that  security  a  tangible  shape,  such  as  the  law  may 
grapple  with  and  protect.  We  do  not  consider,  how  little  may  be 
done,  and  just  save  us  by  its  grace  ;  but  how  much  ought  to  be 
done,  to  make  our  sales  and  our  purchases  solid  and  safe.  There 
is  now  a  wholesome  thrift  and  accuracy  about  our  concerns,  that 
disciplines  us  to  close  attention,  and  gives  us  an  almost  instantane- 
ous perception  of  what  is  proper.  We  have,  at  all  times,  and 
almost  instinctively,  the  air,  and  character,  and  pride,  of  real 
business-men,  who  look  at  their  title-deeds  before  they  lock  them 
up,  and,  what  is  of  quite  as  much  consequence,  look  at  them  dili- 
gently afterwards.  We  do  not  slumber  over  our  rights,  but  arc 
instant  in  season  and  out  of  season  ;  and  we  do  not  awaken  from 
the  dreams  of  indolence  for  the  first  time,  after  the  lapse  of  twenty 
and  thirty  years,  and  then  consult  a  solicitor  as  to  the  best  mode  of 
framing  a  bill,  that  shall  relieve  us  from  all  the  ill  effects  of  delay, 
and  forgetfulness,  and  hardship,  and  folly.  Our  laws,  hitherto, 
have  secured  only  the  vigilant,  and  not  the  sound  sleepers.  Vigi- 
lantibus,  non  dormientibus,  leges  subveniunt.  Now,  it  is  most 
desirable  to  perpetuate  this  course  of  things,  to  prevent  litigation, 
and  to  encourage  legal  certainty.  And  all  this,  a  good  court  of 
equity,   sustained  bv  a  learned,  intrepid,  and  discriminating  chan- 


CHANCERY    JURISDICTION.  285 

cellor,  such  as  Lord  Eldon,  or  Mr.  Chancellor  Kent,  would  accom- 
plish ;  but  all  this  would  be  lost  under  different  auspices,  as  may 
be  seen  in  some  parts  of  the  Union.  Without  adverting  to  the 
learned  judges  of  our  state  bench,  we  could  name  a  gentleman  at 
the  bar  of  Massachusetts,  whose  cautious,  well  instructed,  modest, 
powerful  mind,  would  adorn  such  an  equity  bench,  and  create  an 
equity  bar.* 

In  the  next  place,  we  think,  that  the  administration  of  equity 
should  be  by  a  distinct  court,  having  no  connexion  with,  or  depen- 
dence upon,  any  court  of  common  law.  There  are  many  reasons, 
which  urge  us  to  this  conclusion.  The  systems  of  equity  and 
law  are  totally  distinct  in  their  relations  and  objects.  The  prac- 
tice and  proceedings  have  little  or  nothing  in  common.  The  prin- 
ciples of  decision  are,  in  most  cases,  exceedingly  different.  A  life, 
devoted  to  either  study,  will  not  more  than  suffice  to  make  an 
eminent  judge ;  a  life,  devoted  to  either,  will  be  filled  up  with 
constant  employment.  There  is  some  danger,  where  both  systems 
are  administered  by  the  same  court,  that  the  equity  of  a  case  will 
sometimes  transfer  itself  to  the  law  side  of  the  court ;  or  the  law 
of  a  case  narrow  down  the  comprehensive  liberality  of  equity. 
The  mixture,  whenever  it  takes  place,  is  decidedly  bad  in  flavor 
and  in  quality.  Tibi  Doris  amara  suam  non  intermisceat  undam. 
Besides,  we  all  know,  that  nothing  is  more  distracting  to  the  mind 
than  a  variety  of  pursuits.  A  steady  devotion  to  one  gives  great 
accuracy  and  acuteness,  and  keeps  the  whole  current  of  thought 
fresh  and  transparent.  We  do  not  say,  that  a  judge  may  not  be, 
with  great  advantage,  transferred  from  one  bench  to  the  other  ;  for 
this  has  been  often  done  with  splendid  success.  Witness  the  cases 
of  Lord  Hardwicke,  and  Lord  Kenyon,  and  Lord  Eldon.  What 
we  contend  for  is,  that  the  same  judge  should  not  at  the  same  time 
administer  both  systems.  In  this,  as  in  many  of  the  arts,  the 
subdivision  of  labor  gives  greater  perfection  to  the  whole  machinery. 
A  man  may  be  a  great  common  law  judge,  but  may  have  no  relish 
for  equity.  The  talents  required  for  both  stations  are  not  necessa- 
rily the  same  ;  and  the  cast  of  mind  and  course  of  study,  adapted 
to  the  one,  may  not  insure  success  in  the  other. 

There  is  another  reason  of  no  inconsiderable  weight,  founded 
upon  the  nature  of  the  duties  to  be  performed  in  equity.     It  is  no 


*  It  need  not  now  (1835)  be  concealed,  that  this  allusion  is  to  the  Hon.  William 
Prescott,  LL.  D. 


286  REVIEWS. 

small  portion  of  the  business  of  such  a  court  to  grant  injunctions 
upon  judgments  obtained  at  law.  This  is  a  delicate  duty,  and 
should  he  entrusted  to  an  independent  court,  which  has  as  yet 
received  no  impressions  of  the  cause,  and  to  whom  its  previous 
merits  are  unknown. 

We  might  suggesl  many  other  reasons,  hut  we  have  not  time  for 
an  ample  discussion  of  such  a  subject.  There  is  one  ohjection, 
however,  which  we  have  heard  repeatedly  urged  against  these 
suggestions,  which  requires  Mime  answer.  It  is  slated,  that  the 
courts  of  the  United  Slates  are  examples  of  the  union  of  the 
powers  of  courts  of  law  and  equity,  and  that  hitherto  no  incon- 
venience has  been  felt  from  this  circumstance.  Without  stopping 
to  inquire  into  the  accuracy  of  this  statement,  we  may  be  permitted 
to  suggest,  that  there  are  some  distinctions  in  reference  to  those 
courts,  which  deserve  consideration.  In  the  first  place,  those  courts 
exercise  but  a  limited  jurisdiction  in  equity  cases.  This  arises,  not 
from  any  restriction  of  their  powers  upon  the  subject-matter,  but 
from  the  qualified  nature  of  their  authority  over  persons.  They 
can,  in  general,  take  cognizance  ol"  suits  in  equity,  only  where  the 
United  States,  or  aliens,  or  citizens  of  other  states,  are  parties. 
Now  it  must  be  obvious,  that  the  great  mass  of  equity  suits,  in  every 
state,  must  consist  of  controversies  between  citizens  and  inhabitants 
of  that  state  :  and  that  local  laws  will  greatly  swell  that  mass. 
Where  there  are  few  cases,  a  court  either  of  law  or  equity  may 
transact  the  whole  business,  without  any  serious  inconvenience. 
But  it  is  far  otherwise,  where  suits  mix  up  with  all  the  concerns  of 
society,  and  may  have  an  indefinite  multiplication.  Besides,  there 
is,  or  at  least  seems  to  be,  under  the  constitution  of  the  United 
States,  an  inherent  difficulty  in  separating  the  supreme  jurisdiction 
at  law  from  that  in  equity.  And  precisely  the  same  difficulty 
exists  in  the  constitution  of  this  state,  and  most  urgently  requires 
to  be  removed  by  an  amendment.  We  hope,  that  this  subject  will 
not  escape  the  attention  of  the  convention,  which  may  be  called  to 
amend  the  constitution,  whether  it  be  thought  best  to  create,  or  not 
to  create,  a  court  of  equity,  at  the  present  time.  If  ever  such  a 
court  be  created,  it  should  be  capable  of  having  a  distinct  and 
independent  exi-'e  nee  ji\en  to  it.  But  to  return.  Another  circum- 
stance as  to  the  courts  of  the  United  States  is,  that,  in  six  out  of  the 
seven  circuits,  state  courts  of  equity  have  an  existence,  either  con- 
nected with  the  courts  of  law,  or  with  an  independent  organization. 
So  that  the  learned  judges  have  the  fullest  opportunities  of  becom- 


CHANCERY    JURISDICTION.  287 

ing  familiarly  acquainted  with  the  practice  and  principles  of  equity 
through  their  whole  professional  career  ;  and,  thus,  may  readily  trans- 
fer into  the  circuit  courts  the  local  practice  of  the  states  within  their 
circuits.  Such  is  not  the  case,  in  general,  in  New  England.  These 
are  considerations,  which,  in  a  combined  view,  ought  very  much  to 
abate  the  strength  of  the  objection,  raised  from  the  example  of  the 
judicial  legislation  of  Congress  on  this  subject. 

In  the  next  place,  if  a  court  of  equity  is  to  be  established, 
and  appeals  are  to  be  allowed  from  its  decrees,  those  appeals  ought 
not  to  be  to  any  court  of  law,  but  to  a  distinct  tribunal  created  for 
the  purpose.  From  causes,  which  will  readily  suggest  themselves 
to  every  juridical  mind,  and  to  which  we  have,  in  some  measure, 
already  alluded,  a  court  of  law,  as  such,  cannot  be  presumed  to  be 
thoroughly  conversant  with  the  doctrines  and  practice  of  equity. 
And,  if  it  be  entrusted  with  a  superintendence  over  that  subject,  it 
must  happen,  that  decrees  will  often  be  reversed  without  sufficient 
reasons,  and  the  court  of  equity  sink  from  its  natural  elevation  to 
the  level  ol  the  inferior  courts  in  the  state  ;  and  that  the  personal 
character  of  the  Chancellor  will  settle  the  authority  of  decisions, 
and  thus  open  the  path  to  personal  influence  and  judicial  jealou- 
sies ;  or  that  the  decrees  will  be  affirmed  without  much  considera- 
tion, leaving  to  the  court  of  appeals  little  more  effective  power  than 
that  of  registering  the  decrees.  We  are  among  those,  who  believe, 
that  the  existence  of  rival  coordinate  courts  has  the  most  salutary 
influence  upon  all  judicial  proceedings.  They  act  as  checks  and 
balances  to  each  other;  and,  if  their  judgments  are  to  be  reviewed, 
it  should  be  by  a  tribunal  of  a  distinct  organization,  common,  if  you 
please,  to  both,  but  sufficient  in  independence  and  dignity  to  pre- 
vent any  undue  ascendancy  by  either.  England  owes  much  of  the 
perfection  of  her  jurisprudence  to  this  striking  feature  in  the  struc- 
ture of  her  government.  She  has  rival  tribunals  of  law  and  equity, 
where  the  pride  and  learning  of  the  profession  and  the  bench  are 
stimulated  to  the  noblest  purposes,  the  advancement  of  justice,  and 
the  redress  of  injuries,  by  that  perpetual  watchfulness,  which  keen 
intelligence  and  sincere  devotion  to  the  law  never  fail  to  stir  up  in 
ambitious  minds. 

While  on  this  subject,  we  are  disposed  to  recall  the  public  atten- 
tion to  a  Report  made  to  the  legislature  of  Massachusetts,  and  printed 
by  its  order,  in  the  year  1808,  recommending  the  establishment  of 
an  independent  court  of  equity.  We  dare  say  this  document  is 
totally  forgotten,  as  most  of  our  unsuccessful  legislative  proceedings 


288  REVIEWS. 

are,  by  the  public  at  large,  and  perhaps  by  most  of  the  committee, 
who  reported  it.  It  has  been  consigned,  as  most  other  state- 
papers  are,  to  some  dark  and  obscure  corner  of  some  lumber-loft 
in  the  State  House,  there  to  await  the  dissolution  of  their  mortal 
remains  by  the  gradual  operation  of  time,  and  moulds,  and  vermin, 
"  unwept,  unhonored,  and  unsung."  Would  it  not  be  for  the  repu- 
tation and  dignity  of  our  state  government,  if,  instead  of  leaving 
our  public  legislative  documents  to  perish,  some  pains  and  some 
money  were  employed  to  preserve  a  number  of  copies  bound  and 
lettered  in  the  state  archives,  that  posterity  may  know  the  progress 
of  our  legislation,  and  find  some  public  indexes  to  those  subjects, 
which  interested  the  public  mind,  and  gave  a  new  direction  to  pub- 
lic inquiry  ?  We  doubt,  whether  there  exists,  in  the  whole  Com- 
monwealth, at  this  moment,  a  single  regular  series  of  the  reports, 
bills,  and  other  proceedings  of  our  legislature,  which  have  been 
printed  at  the  expense  of  the  government,  even  within  the  last 
twenty  years.  Surely,  this  is  a  most  wanton  indifference  to  our 
public  concerns ;  and  it  will  be  regretted,  deeply  regretted,  when  it 
can  no  longer  be  within  the  reach  of  common  diligence  to  collect 
them.  It  should  be  made  the  special  duty  of  our  Secretary  of 
Stale,  to  have  bound,  and  kept  in  his  office,  at  least  twenty  copies 
of  all  documents  printed  by  order  of  the  legislature  ;  and  to  have 
a  transcript  in  bound  volumes  of  all  manuscript  proceedings,  re- 
ports, bills,  &c,  acted  upon  in  any  shape,  by  the  legislature  at 
every  session,  with  a  suitable  index  for  reference.  In  this  way  the 
next  generation  would  not  be  in  utter  and  irretrievable  ignorance 
of  our  domestic  legislative  history,  full  of  instruction,  as  it  must 
be,  both  as  to  what  we  ought  to  avoid,  and  what  we  ought  to 
cherish. 

But  to  return  to  the  Report,*  to  which  we  have  alluded,  and  which 
we  accidentally  found  in  searching  our  papers  for  another  purpose. 
It  contains  a  summary  of  the  practice  and  principles  of  courts  of 
equity,  in  some;  of  the  points  most  applicable  to  our  jurisprudence. 
Since  the  period,  in  which  it  was  made,  the  legislature  has  by  law 
cured  some  of  the  defects  enumerated  in  the  Report ;  but  the  sub- 
stance of  it  is  just  as  true  now,  as  it  was  at  that  time.  We  transcribe 
from  it  the  following  paragraphs,  which  we  commend  to  the  careful 
perusal  of  our  statesmen  and  jurists. 


M'liis  Report  was  made  by  a  committee,  of  which  the  writer  of  this  article  was 
chairman. 


CHANCERY    JURISDICTION.  289 

"  Courts  of  equity,  as  contradistinguished  from  courts  of  law, 
have  jurisdiction  in  cases,  where  the  hitter,  from  their  manner  of 
proceeding,  cither  cannot  decide  at  all  upon  the  suhject,  or  cannot 
decide  conformably  with  the  principles  of  substantial  justice. 
Whenever  a  complete,  certain,  and  adequate  remedy  exists  at  law, 
courts  of  equity  have  generally  no  jurisdiction.  Their  peculiar 
province  is  to  supply  the  defects  of  law  in  cases  of  frauds,  acci- 
dents, mistakes,  or  trusts.  In  cases  of  fraud,  where  an  instrument 
is  fraudulently  suppressed,  or  withheld  from  the  party  claiming 
under  it  ;  where  an  unconscientious  advantage  has  been  taken  of 
the  situation  of  a  party  ;  where  a  beneficial  property  is  injuriously 
misappropriated  ;  equity  interferes,  and  compels  complete  resti- 
tution. In  cases  of  accident,  or  mistake,  where  a  contract  has 
been  made  respecting  real  or  personal  estate,  and  by  reason  of 
death  cannot  be  completed  ;  or  where,  by  subsequent  events,  a 
strict  performance  has  become  impossible  ;  where,  in  consequence 
of  a  defective  instrument,  the  intention  of  the  parties  is  in  danger 
of  being  defeated  ;  or  where  a  want  of  specific  performance  cannot 
be  compensated  in  damages ;  equity  administers  the  proper  and 
effectual  relief.  In  cases  of  trust,  where  real  or  personal  estate, 
by  deed,  will,  or  otherwise,  is  confided  to  one  person  for  the  ben- 
efit of  another  ;  where  creditors  are  improperly  preferred  or  ex- 
cluded ;  where  numerous  or  discordant  interests  are  created  in  the 
same  subject-matter  ;  where  testamentary  dispositions,  for  want  of 
a  proper  trustee,  are  not  fulfilled  ;  and  where  fiduciary  estates  are, 
by  connivance  or  obstinacy,  directed  to  partial  or  unjust  purposes  ; 
equity  applies  the  principles  of  conscience,  and  enforces  the  express 
or  implied  trusts  according  to  good  faith. 

"  Sometimes,  by  fraud  or  accident,  a  party  has  an  advantage  in 
proceeding  in  a  court  of  ordinary  jurisdiction,  which  must  neces- 
sarily make  that  court  an  instrument  of  injustice,  if  the  suit  be 
suffered  ;  and  equity,  to  prevent  such  a  manifest  wrong,  will 
interpose,  and  restrain  the  party  from  using  his  unfair  advantage. 
Sometimes  one  party  holds  completely  at  his  mercy  the  rights  of 
another,  because  there  is  no  witness  to  the  transaction,  or  it  lies 
in  the  privity  of  an  adverse  interest  ;  equity,  in  such  cases,  will 
compel  a  discovery  of  the  facts,  and  measure  substantial  justice 
to  all.  Sometimes  the  administration  of  justice  is  obstructed,  by 
certain  impediments  to  a  fair  decision  of  the  case  in  a  court  of 
law  ;  equity,  in  such  cases,  as  auxiliary  to  the  law,  removes  the 
impediments.  Sometimes  property  is  in  danger  of  being  lost  or 
37 


290  REVIEWS. 

injured,  pending  a  litigation  ;  equity  there  interposes  to  preserve 
it.  Sometimes  oppressive  and  vexatious  suits  are  wantonly  pur- 
sued, and  repeated  by  litigious  parties  ;  for  the  preservation  of 
peace  and  of  justice,  equity  imposes,  in  such  cases,  an  injunction  of 
forbearance. 

"  These  are  a  \\>\v  only  of  the  numerous  cases,  in  which  univer- 
sal justice  requires  a  more  effectual  remedy  than  the  courts  of 
common  law  can  give.  In  proportion  as  our  commerce  and 
manufactures  flourish,  and  our  population  increases,  subjects  of 
this  nature  must  constantly  accumulate  ;  and.  unless  the  legisla- 
ture interpose,  dishonest  and  obstinate  men  may  evade  the  law, 
and  intrench  themselves  within  its  forms  in  security.  One  or  two 
striking  instances,  applicable  to  our  present  situation,  will  illustrate 
these  positions.  In  this  Commonwealth,  no  adequate  remedy 
exists  at  law  to  unravel  long  and  intricate  accounts  between  mer- 
chants in  general ;  and  between  partners  the  remedy  is  still  less 
efficacious  to  adjust  the  partnership  accounts.  A  refractory  or 
fraudulent  partner  may  seize  the  books,  papers,  and  effects  of 
the  firm,  and  cannot  by  any  process  be  compelled  to  disclose  or 
produce  them.  In  many  instances,  therefore,  neither  debts  can 
be  recovered,  nor  accounts  be  adjusted  by  them,  unless  both  par- 
ties are  equally  honest,  and  equally  willing.  Great  evils  have 
already  arisen  from  this  cause  ;  and  still  greater  must  arise,  unless 
equity  be  brought  in  aid  of  law.  In  cases  of  pecuniary  and  spe- 
cific legacies,  no  complete  remedy  lies  to  compel  a  marshalling 
of  the  assets,  or  an  appropriation  of  them  according  to  the  inten- 
tion of  the  testator ;  and,  where  the  interests  of  the  parties  are 
complicated,  great  injustice  must  often  ensue.  In  cases  of  trusts, 
created  by  last  wills  and  testaments,  which  are  already  numerous, 
no  remedy  whatsoever  exists  to  compel  the  person,  on  whom  the 
fiduciary  estate  devolves,  to  carry  them  into  operation.  He  may 
take  the  devised  property,  and,  if  his  conscience  will  permit,  may 
duly  all  the  ingenuity  and  all  the  terror  of  the  law.  Mortgages 
afford  a  great  variety  of  questions  of  conflicting  rights,  which, 
when  complicated,  are  beyond  the  redress  of  the  ordinary  courts  ; 
nay.  more,  may  often  be  the  instruments  of  iniquity  under  their 
judgments.  A  discovery  on  oath  seems  the  only  effectual  means 
of  breaking  down  the  barriers,  with  which  the  cunning  and  the 
fraudulent  protect  their  injustice.  The  process,  by  which  the 
goods,  effects,  and  credits  of  debtors  are  attached  in  the  hands  of 
their  trustees,  is  often  inefficient,  and   sometimes  made  the  cove 


CHANCERY    JURISDICTION.  291 

of  crafty  chicanery.  Perhaps,  too,  in  assignments  of  dower  and 
partition  of  estates,  where  the  titles  of  the  parties  are  questionable 
and  intricate,  or  the  tenants  in  possession  are  seized  of  particular 
estates  only  ;  it  will  be  found,  that  courts  of  equity  can  administer 
the  only  safe  and  permanent  relief. 

"  The  Committee  are  not  aware  of  any  solid  objection  to  the 
establishment  of  a  court  of  equity  in  this  Commonwealth.  The 
right  to  a  trial  by  jury  is  preserved  inviolate  ;  and  the  decisions 
of  the  court  must  be  governed  as  much  by  settled  principles,  as 
courts  of  law.  Precedents  govern  in  each,  and  establish  rules  of 
proceeding.  The  relief  granted  is  precisely  what  a  court  of  law 
would  grant,  if  it  could  ;  for  equity  follows  the  law.  The  leading 
characteristics  of  a  court  of  equity  are,  the  power  to  eviscerate 
the  real  truth  by  a  discovery  of  facts  upon  the  oath  of  the  party 
charged  ;  the  power  to  call  all  parties  concerned  in  interest,  how- 
ever remote,  before  it  ;  and  the  power  to  adapt  the  form  of  its 
judgments  to  the  various  rights  of  the  parties,  as  justice  and  con- 
science may  require." 

We  have  yet  many  things  more  to  say  on  this  subject,  but  time 
fails  us,  and  we  have  wearied  ourselves,  and  we  fear  that  our  readers 
also  are  wearied  with  the  length  of  this  discussion.  Perhaps  at 
some  future  time  we  may  resume  it.  At  present,  we  are  willing  to 
pass  the  short  remainder  of  our  journey  in  such  good  company,  as 
Mr.  Chancellor  Kent  and  his  excellent  Reporter. 

Mr.  Johnson,  if  we  do  not  mistake,  began  the  business  of  Report- 
ing in  February,  1806.  Since  that  period  he  has  published,  in  an 
uninterrupted  series,  all  the  decisions  of  the  supreme  court  of  New 
York,  down  to  the  present  time,  in  sixteen  goodly  volumes.  He 
has  also  published  three  volumes  of  reports  of  the  cases,  in  the 
period  immediately  preceding  Mr.  Caines's  Reports  in  the  same 
court.  Unwearied  in  his  labors,  he  has  now  added  to  our  obliga- 
tions to  him,  by  presenting  us  the  three  volumes  of  chancery  cases, 
whose  title  is  prefixed  to  this  article.*  He  has  been  so  long  before 
the  public  in  this  most  respectable  and  useful  character,  that,  per- 
haps, it  may  be  thought  almost  superfluous  to  say  a  word  upon  the 
merits  of  his  Reports.  We  will  venture,  however,  to  give  them  a  pass- 
ing notice,  at  the  hazard  of  repeating  what  almost  every  body  knows, 
and  none  would  incline  to  disbelieve.     He   is   a   centleman,  as  we 


*  The  Reports  of  Mr.  Johnson  are  now  (1835)   completed,  and  embrace  thirty 
volumes,  including  those  stated  in  the  text. 


292  ' :1  \  iews. 

have  the  pleasure  to  know,  of  great  literary  accomplishments,  well 
instructed  in  the  law,  and  of  most   comprehensive  research.     He 
loves,  too,  —  and  it  is  no  inconsiderable   praise   in   what  are  called 
these  degenerate  days,  —  he  loves  the  law  with    all   his  heart,  and 
has  a  sincere  and  unaffected  enthusiasm   for  its  advancement.     His 
Reports  are  distinguished  hy   the   most  scrupulous  accuracy,  good 
sense,  and  good  taste.     He   gives   the   arguments   of  counsel  with 
force,  precision,  and  fluency  :   transfusing  the  spirit,  rather  than  the 
letter,  of  their  remarks  into   his  pages.     One   is  never  puzzled  by 
unintelligible    sentences,    impertinent    sallies,    or    disproportionate 
reasoning  in  his  volumes.     There   is  an  exactness  and   symmetry 
about  them,   that   satisfies  the  judgment.     His   notes,  too,  are   all 
good  ;  so  good,  that  we  wish  we  had  a  great  many  more  of  them. 
He  leaves  little  causes  to  take  care  of  themselves,  and  assigns  them 
a  brief  space.     But  when   he   comes  to  great  arguments,  where 
research  and  talent  are  brought  out  with  vast  power  and  authority, 
he  pours  their  whole  strength  before  the  reader,  giving  him  all  the 
materials  of  an   independent  judgment.     He   can,   if  he   pleases, 
repeat  such  cases  for  himself,  by   the   aid  of  the  reporter.     As  to 
the  opinions  of  the  court,  we  have  not  any  necessity  to  say  much. 
It  is,  and  always  has  been,  a  very  able  court,  whose  decisions  any 
man  might  be  proud  to  report  ;  and  the  highly  commendable  dili- 
gence of  the  judges,  in  committing  all  their  important  opinions  to 
writing,  while  it  gives   the   impress   of  authority,   at  the  same  time 
secures  the  court  from  the  inaccuracies   and  mistakes  of  oral  opin- 
ions.    It  gives   dignity   to   the   bench,   and   certainty   to   the   law. 
Who,  but  must  read  with  delight  and  instruction  the  opinions  of  such 
men  as  Mr.  Chief  Justice  Spenser,  to  say  nothing  of  his  learned  co- 
adjutors and  predecessors  ?    Fen-  ourselves,  we  have  no  hesitation  in 
avowing  the  opinion,  that  the  New  York  Reports,  for  the  last  twenty 
years,  will  bear  comparison    with    those  of  an  equal  period  in  the 
best  age  of  the  English  law,  begin  the   selection   where  you  may; 
and  this,  whether  we    examine   the    well  considered  and  ingenious 
arguments  of  the  bar,  or  the   deep   reasoning   and   learning  of  the 
bench,  or  the  accuracy  and  ability  of  the  reporter.      And  as  to  the 
chancery  decisions  of  Mr.   Chancellor   Kent,    they   are   as   full  of 
learning,  and  pains-taking  research,  and  vivid  discrimination,  as  those 
of  any  man,  that  ever  sat  on  the  English  woolsack. 

Enough  has  been  said,  and  more  than  enough,  to  attract  the  atten- 
tion of  our  professional  readers  to  the  volumes,  referred  to  at  the  be- 
ginning of  this  article.     If  we  had  room,  we  might  be  tempted  to 


CHANCERY    JURISDICTION.  293 

extract  a  case  or  two  for  perusal,  on  account  either  of  its  general 
interest,  or  the  acute  and  learned  discussion  it  contains.  There 
may  be  some  few  cases,  in  which  jurists  might  venture  to  hesitate, 
as  to  the  extent  of  the  Chancellor's  decision  ;  at  least  where  there 
might  be  a  measuring  cast  in  mooting  the  law.  But  these  cases 
(if  any  such  exist)  are  so  few  and  so  unimportant,  that  they  are 
lost  in  the  bulk  of  the  volumes  ;  and  criticism  is  never  employed 
to  so  little  advantage,  as  in  attempting  to  revise  the  sentences  pro- 
nounced by  courts  of  justice.  The  only  fit  and  efficient  tribunal, 
except  in  very  gross  cases,  seems  to  be  that  provided  for  by  the 
law  itself,  an  appeal  to  a  higher  tribunal  to  review  the  sentence,  or 
to  the  same  court  to  reconsider,  at  another  time,  its  own  judgments. 
We  cannot  quit  these  volumes,  however,  without  expressing  our 
gratitude  to  Mr.  Johnson  for  presenting  them  to  the  public. 
No  lawyer  can  ever  express  a  better  wish  for  his  country's  juris- 
prudence, than  that  it  may  possess  such  a  chancellor  and  such  a 
Reporter. 


R  E  V I  E  W 


OF  A  TREATISE   ON   THE   LAW   OF  [NS1  RANCE,   BY  WILLARD  PHILLIPS. 


[First  published  in  the  A'oitli  American  Review,  1825.] 

The  progress  of  commerce  in  modern  times  will  appear  more 
surprising,  the  more  minutely  it  is  examined.  It  steadily  advanced 
among  the  nations  of  Europe  dining  the  whole  of  the  eighteenth 
century  ;  and  in  the  latter  half,  notwithstanding  occasional  inter- 
ruptions by  war,  it  was  probably  double  in  extent  and  value,  what 
it  had  ever  attained  in  any  other  equal  period.  Holland  had, 
indeed,  lost  her  maritime  superiority  by  the  destruction  of  her 
carrying  trade.  But  the  Northern  Powers,  and  particularly  Russia, 
assumed  a  highly  commercial  character.  Italy  was  compelled  to 
mourn  the  departure  of  the  times,  when  Venice,  and  Genoa,  and 
Leghorn,  covered  the  Mediterranean  with  their  wealth.  But 
France  felt  the  invigorating  influence  of  trade,  and  began  to  court 
with  respect,  what  she  had  previously  cherished  only  as  a  source  of 
revenue.  Above  all,  British  commerce,  during  this  period,  en- 
joyed the  most  signal  triumph.  Her  merchants  and  mariners  were 
familiar  with  the  whole  globe,  with  the  Baltic  and  the  Levant, 
the  Black  and  the  White  Sea,  the  Atlantic  and  the  Pacific,  with 
the  Americas  and  the  Indies,  with  the  fisheries  of  Newfoundland  and 
Greenland,  with  the  fur-trade  of  the  Indians,  the  timber,  hemp, 
and  manufactures  of  the  North,  the  cottons,  spices,  and  teas  of  the 
East,  and  with  the  gums,  dings,  ivory,  and  llesh  of  Africa.  It  is 
probably  short  of  the  real  state  of  the  case  to  assert,  that  the  com- 
mercial capital  of  Great  Britain  was  quadrupled  during  the  reign 
of  George  the  Third.  Of  the  causes  of  this  vast  increase,  it  is 
beside  our  present  purpose  to  enter  into  an  examination.  But 
there  can  be  no  doubt,  that  her  navigation  has  been  essentially 
aided   by  the  improved   state   of  her   manufactures,  arising  as  well 


PHILLIPS    ON    INSURANCE.  295 

from  superior  skill  and  workmanship,  as  from  her  wonderful  inven- 
tions in  cotton-machinery.  She  now  exports  to  the  East  Indies 
and  China  cotton  goods  of  her  own  manufacture,  to  an  immense 
value,  which  she  formerly  imported  from  those  countries.  And 
the  unrivalled  beauty  and  excellence  of  her  fabrics  have  not  only 
suspended  the  use  of  those-  of  foreign  origin  within  her  own  do- 
minions, but  have  enabled  her,  in  a  great  measure,  to  command  all 
the  open  markets  of  the  world. 

Under  such  circumstances,  it  would  be  a  natural  inference,  that 
there  had  been  a  corresponding  advancement  of  her  commercial 
law.  The  conclusion  would  seem  natural,  if  not  irresistible,  that 
a  people,  distinguished  for  centuries  by  their  commercial  activity 
and  enterprise,  must  have  been  under  the  protection  of  a  well 
settled  system  of  commercial  jurisprudence.  Philosophers  and 
practical  jurists  would  ask,  how  it  would  be  possible  for  the  infi- 
nite variety  of  business,  growing  out  of  an  extensive  foreign  trade, 
to  be  adjusted,  without  resort  to  some  well  known  rules  and  general 
principles.  Strange,  however,  as  it  may  seem,  it  is  undeniable, 
that  England  had  made  very  little  progress  in  commercial  law, 
at  so  late  a  period,  as  the  commencement  of  the  reign  of  George 
the  Third.  Yet  she  had  been  a  commercial  nation,  to  a  conside- 
rable extent,  from  the  reign  of  Elizabeth  ;  and  for  more  than  a 
century  had  possessed  plantations  and  colonies,  whose  population 
and  trade  perpetually  invigorated  her  navigation. 

A  slight  historical  review  will  put  this  matter  beyond  any  rea- 
sonable controversy.  One  of  the  earliest  English  works  on  mari- 
time law  is  Malynes's  Lex  Mercatoria,  published  in  1622,  in  the 
reign  of  James  the  First.  Wei  wood  had  a  few  years  before 
printed  his  Abridgment  of  the  Sea  Laws  ;  but  it  is  principally  a 
collection  of  the  rules  and  ordinances  of  foreign  countries.  It  is 
remarkable,  that  Malynes  refers  to  no  antecedent  English  writer 
on  the  subject  of  his  treatise,  and,  except  in  a  very  few  unimportant 
instances,  to  no  English  adjudications.  His  work  is  principally  a 
compendium  of  commercial  usages,  not  confined  to  England,  but 
supposed  by  him  to  be  common  to  all  the  maritime  states  of  Eu- 
rope. It  is  quite  a  meagre  and  loose  performance,  and  contains 
[cw  principles,  that  are  now  of  any  practical  importance.  He  has 
two  or  three  short  chapters  upon  bills  of  exchange,  which  show, 
that  the  doctrines  upon  that  subject,  then  familiar  on  the  Continent, 
were  not  much  known  in  England,  except  as  usages  among  mer- 
chants.    He  laments,  that  negotiable  promissory  notes,  which  then 


296  REVIEWS. 

circulated  among;  all  the  commercial  cities  of  the  neighbouring  na- 
tions were  strangers  to  the  jurisprudence  of  England.  In  fact, 
they  were  not  introduced  into  general  use,  until  near  the  close 
of  the  reign  of  Charles  the  Second.  Lord  Holt,  in  the  case 
of  Buller  v.  Crisp,  (6.  Mod.  Rep.  -2D.)  decided  in  the  second 
year  of  Queen  Anne's  reign,  said,  "  1  remember  when  actions  upon 
inland  bills  did  first  begin  ;  and  there,  they  laid  a  particular  cus- 
tom between  London  and  Bristol,  and  it  was  an  action  against  the 
accepter.  The  defendant's  counsel  would  put  them  to  prove  the 
custom  :  at  which  Hale.  Chief  Justice,  laughed,  and  said,  they  had 
a  hopeful  case  of  it."  Lord  Holt  himself  stubbornly  denied  the 
negotiability  of  promissory  notes  ;  and,  in  this  very  case  of  Buller 
v.  Crisp,  it  was  proved,  that  these  notes  had  then  been  "  used  for 
a  matter  of  thirty  years."  It  is  familiar  to  the  profession,  that  an 
Act  of  Parliament  was  found  necessary  to  put  promissory  notes 
upon  the  same  footing  as  inland  bills  of  exchange,  although  "  this 
laudable  custom,"  as  Malynes  calls  it,  bad  been  long  established 
on  the  Continent.  Malynes  devoted  five  chapters,  containing  in 
all  about  fifteen  folio  pages,  to  the  subject  of  insurance.  We  do 
not  recollect,  that,  in  the  whole  of  the  discussion,  a  single  reference 
is  made  to  any  English  adjudication.  It  is,  indeed,  sufficiently 
apparent,  that  the  author  drew  almost  all  his  materials  from  foreign 
sources.  The  earliest  case,  indeed,  that  is  to  be  found  on  a  policy 
of  insurance,  is  cited  by  Lord  Coke  in  Dovvdale's  case,  ((5.  Co.  48,) 
as  having  been  decided  in  30th  and  31st  Elizabeth  ;  and  from 
the  manner,  in  which  he  refers  to  it,  as  well  as  from  the  point  in 
judgment,  it  is  manifest,  that  the  action  was  then  a  novelty. 

In  1651,  Mr.  Marius,  a  notary  public,  published  bis  book,  enti- 
tled, "  Advice  concerning  Bills  of  Exchange,"  which  went  through 
several  editions,  and  was  the  only  work  of  much  reputation,  that 
appeared  on  this  subject  in  England,  until  alter  the  lapse  of  a  cen- 
tury, it  is  altogether  a  practical  treatise,  referring  for  authority  to 
the  common  usages  of  merchants,  and  pretending  to  no  aid  from 
any  acknowledged  doctrines  of  the  English  law.  At  the  distance 
of  fifty  years  after  Malynes,  .Mr.  Molloy,  a  barrister-at-law,  pub- 
lished his  work,  De  .lure  Maritimo  et  Navali.  The  subject  of 
insurance  is  despatched  in  one  short  chapter;  and.  though  here  and 
there  a  few  short  notes  of  English  cases  are  interspersed,  the 
substance  is  essentially  what  is  found  in  Malynes.  So  that  it  may  be 
fairly  inferred,  that,  during  the  intermediate  period,  little  progress 
had  been   made  in   the  true   understanding  of  this  branch  of  the 


PHILLIPS    ON    INSURANCE.  297 

law.  Indeed,  its  real  importance  was  so  imperfectly  estimated  by 
the  common  lawyers,  that  Molloy  triumphantly  observes,  "  The 
policies  now-a-days  are  so  large,  that  almost  all  those  curious 
questions,  that  former  ages  and  the  civilians,  according  to  the  law 
marine,  nay,  and  the  common  lawyers  too,  have  controverted,  are 
now  out  of  debate.  Scarce  any  misfortune,  that  can  happen,  or 
provision  to  be  made,  but  the  same  is  taken  care  for  in  the  policies, 
that  are  now  used  ;  for  they  insure  against  heaven  and  earth,  stress 
of  weather,  storms,  enemies,  pirates,  rovers,  &c,  or  whatever 
detriment  shall  happen  or  come  to  the  thing  insured,  &c,  is  pro- 
vided for."  This  would  be  strong  language  to  use  even  in  our 
days,  when  the  legal  construction  of  the  terms  and  the  risks  of 
policies  has  been  settled,  after  very  numerous  and  expensive  litiga- 
tions. But  for  that  day,  and  from  a  lawyer  too,  the  language  is 
most  extraordinary  ;  and  could  arise  only  from  gross  ignorance  of 
the  vast  extent  and  variety  of  the  subject. 

In  respect  to  navigation  and  shipping,  which  now  form  so  large 
heads  of  commercial  law,  the  information  given  by  these  treatises 
is  miserably  defective.  It  is  given  in  three  or  four  chapters,  con- 
taining little  more  than  abstracts  from  the  laws  of  Oleron,  and 
from  the  short  maritime  titles  in  the  civil  law  and  its  commentators. 
And  yet  these  treatises,  for  we  need  hardly  advert  to  Mr.  Magens's 
Essay  on  Insurances,  published  so  late  as  1755,  contain  the  sub- 
stance of  all  English  elementary  collections  of  maritime  jurispru- 
dence, down  to  the  period,  when  Lord  Mansfield  succeeded  Sir 
Dudley  Ryder,  as  Chief  Justice  of  the  King's  Bench.  Nor  was 
this  deficiency  owing  to  the  want  of  talents  or  industry  on  the  part 
of  the  compilers.  They  accumulated  most  of  the  valuable  English 
materials  within  their  reach.  The  reports  furnished  very  few 
principles,  and  still  fewer  illustrations  of  general  application.  It  is 
true,  that  Lord  Holt,  in  his  famous  decision  in  the  case  of  Coggs 
v.  Barnard,  in  which  per  solium  he  incorporated  the  whole  civil 
law  of  bailments  into  the  common  law,  led  the  way  to  a  more 
exact  understanding  of  the  law  of  shipping  ;  but  the  actual  appli- 
cation of  his  principles  belongs  to  a  later  age. 

That  there  is  no  exaggeration  in  this  statement  of  the  uncer- 
tainty and  defects  of  the  English  law  on  maritime  subjects,  will 
be  still  more  fully  evinced  by  reference  to  some  of  the  best  authors. 
Mr.  Justice  Blackstone,  in  his  very  elegant  and  classical  Commen- 
taries, a  work  professing  to  contain  a  summary  of  the  principles  of 
English  law,  treats  the  subject  of  insurance  in  a  single  paragraph  ; 
38 


-JM-  REVIEWS. 

and,  after  defining  the  contract,  and  showing  it   not  to  be  usurious, 
briefly  adds,  "  The  learning  relating   to   these   insurances  hath,  of 
late  years,  been  greatly  improved  by  a  series  of  judicial  decisions, 
which  have  now  established  the  law  in  such  a  variety  of  cases,  that, 
if  well  and  judiciously  collected,  they  would  form  a  very  complete 
title  in  a  code  of  commercial  jurisprudence.     But,  being  founded 
on  equitable   principles,  which  chiefly  result  from  the  special  cir- 
cumstances of  the   case,   it   is  not  easy   to  reduce  them   to  any 
general   In  mis    in    mere    elementary    treatises."      Such  was    the 
view  of  a   very  competent  judge,  on  the  state  of  the   law   in  the 
year   1765.     Mr.    Park,  in   the   introduction  to   his  system,   after 
adverting  to  the  history  of  the  establishment  of  the  court  of  poli- 
cies of  assurance   in   the  reign   of  Queen   Elizabeth,  and  its  hav- 
ing subsequently  fallen  into    disuse,  and   probably  into  disrepute, 
observes,  "  But,  though  the  court  of  policies  of  assurance  has  been 
long  disused,  though   it  is  near  a  century  since  questions  of  this 
nature  became  chiefly  the  subject  of  common  law  jurisdiction  ;  yet, 
1  am  sure,  I  rather  go  beyond  bounds,  if  I  assert,  that,  in  all  our 
reporters,  from   the   reign  of  Queen  Elizabeth  to  the  year  1756, 
when  Lord  Mansfield  became  Chief  Justice  of  the  King's  Bench, 
there  are  sixty  cases  upon  matters  of  insurance.     Even  those  cases, 
which  are  reported,  are   such  loose   notes,  mostly  of  trials   at  nisi 
prim,  containing  a  short  opinion  of  a  single  judge,  and   very  often 
no  opinion  at   all,  but  merely  a  general  verdict.     From  hence  it 
must  necessarily  follow,  that,  as  there   have  been   but  few  positive 
regulations   upon  insurances,  the   principles,  on   which   they  were 
founded,  could  never  have  been  widely  diffused,  nor  very  generally 
known."    Mr.  Marshall  in  general  terms  confirms  these  observa- 
tions.    After   referring  to   the   establishment  of  the  two  great  En- 
glish insurance  companies  by  the  statute  of  6th  George  I.,  ch.  18, 
he   proceeds  to  say,  "  From  this   time,  it  may  be   reasonably  sup- 
posed, that  all  suits  on   policies  of  insurance  were  brought  in  the 
courts  of  common  law  ;   and  yet  but  few   questions  on  this  subject 
appear  to   have   been   determined   in  the  courts  of  Westminster, 
before  the  middle  of  the  last  [eighteenth]  century.     Whether  this 
arose  from   the  number  of  insurances  in  England  being  inconside- 
rable, compared   to  what  it  has  since  become,  or  from  the  parties 
being  still  in  the  habit  of  settling  their  difference  by  arbitration,  or 
from   both  these  causes   united,  it  is  not  now  easy  to  determine." 
Mr.  Miller  gives  a  similar  view  of  the   English  law,  and  in  marked 
terms  attributes  its  great  improvement  to  Lord    Mansfield ;    and 


PHILLIPS    ON    INSURANCE.  r299 

then,  speaking  of  his  own  country  in  1787,  adds  the  following 
remarks  :  "  In  Scotland,  the  improvements  of  this  branch  of  law 
have  hecn  still  later  than  in  England,  as  might  he  expected  from 
the  slower  growth  of  its  commerce.  Although  the  decisions  of 
the  principal  court  of  justice  have  been  pretty  regularly  collected, 
for  more  than  a  century;  yet  the  first  decision-,  which,  strictly 
speaking,  relate  to  insurance,  are  all,  except  one,  within  the  course 
of  the  last  ten  years.  During  this  period,  however,  the  trade  of 
insuring  has  risen  to  a  very  great  height ;  and  the  decisions  of  the 
Court  of  Session  upon  that  subject  have  become  proportionably 
comprehensive  and  systematic." 

What  renders  this  state  of  the  English  law  the  more  extraordi- 
nary, is  the  fact,  that  almost  all  the  important  general  principles  of 
commercial  jurisprudence  had,  for  more  than  three  quarters  of  a 
century,  been  reduced  to  a  very  clear  and  practical  code  in  France. 
The  very  early  treatise  on  insurance,  called  Le  Guidon,  was  repub- 
lished by  Cleirac,  in  his  Us  et  Coutumes  de  la  Mer,  in  1671.  In 
1673,  Louis  the  Fourteenth  publjshed  his  Ordinance  upon  Com- 
merce, which,  among  other  things,  deals  largely  upon  the  doctrines 
of  hills  of  exchange  and  promissory  notes  and  orders.  This  was 
followed  by  the  truly  admirable  Ordinance  of  1681,  in  which  the 
whole  law  of  navigation,  shipping,  insurance,  and  bottomry  is  col- 
lected in  a  most  systematic  and  masterly  manner.  It  would  be  a 
very  narrow  and  unjust  view  of  these  ordinances,  to  consider  them 
as  mere  collections  of  the  municipal  regulations  of  France.  They 
are,  more  properly,  collections  of  those  commercial  principles  and 
usages,  which  the  experience  of  merchants  had  found  most  wise 
and  convenient  in  their  intercourse,  and  which  the  habits  of  busi- 
ness, and  the  necessities  of  trade,  had  gradually  introduced  into 
favor  among  all  modern  maritime  nations.  Yet  the  English  com- 
mon lawyers,  if  not  profoundly  ignorant  of  the  value  of  this  code, 
then  passed  it  by  with  obstinate  indifference,  and  contented  them- 
selves with  a  proud  reliance  on  the  old  doctrines  of  Westminster 
Hall,  as  adequate  to  all  the  exigencies  of  modern  society. 

It  seems  to  have  been  thought  somewhat  difficult  to  account  in 
a  satisfactory  manner  for  this  state  of  things,  especially  as  Mr. 
Magens,  referring  to  the  period  when  he  wrote,  states,  "  It  must 
be  allowed,  that  the  business  of  insurance  is  carried  to  a  much 
greater  extent  in  London  than  in  any  other  country  in  Europe. 
Insurances  are  daily  made  here  on  adventures  by  foreign  ships,  as 
well  as  others,  whose  risks  are  wholly  determinable  in  foreign  do- 


300  REVIEWS. 

minions."  Mr.  Park  and  Mr.  Marshall  obviously  consider  the 
subject  as  involved  in  much  obscurity,  and  prudently,  if  not 
warily,  abandon  it  to  the  conjectures  of  the  reader. 

To  us  it  appears  to  admit  of  a  very  simple  solution,  although 
one,  which  the  pride  of  the  profession  might  not  choose  to  point 
out,  without  confessing  the  fallibility  of  the  system.  It  is,  that  the 
common  law  was  an  mti  r  stranger  to  the  principles  of  commer- 
cial jurisprudence,  and  slowly  and  reluctantly  admitted  them  into 
its  bosom  ;  so  that  the  age  was  always  greatly  in  advance  of  the 
doctrines  of  the  judicial  tribunals.  The  ancient  law  dealt  alto- 
gether in  feudal  tenures  and  doctrines,  abounding  in  scholastic 
subtilties  and  refinements,  and  nice  and  curious  distinctions,  much 
better  fitted  for  the  times  of  chivalry  and  feudal  burdens,  than  for 
the  manhood  of  commerce.  It  had  a  narrow  and  technical  mode 
of  expounding  contracts,  and  a  still  more  narrow  and  unsatisfac- 
tory mode  of  enforcing  them.  Instead  of  widening  its  channels  to 
accommodate  the  active  business  of  life,  the  whole  was  compelled 
to  pass,  as  it  might,  within  the  ancient  boundaries.  The  subtilties 
of  pleading,  the  difficulty  of  enforcing  various  defences,  and  the 
inconveniencies  of  screwing  down  general  merits  into  established 
forms,  embarrassed  every  remedy  upon  contracts  of  a  special 
nature,  and  drove  the  parties  to  seek  redress  in  the  then  infant, 
and  of  course  very  imperfect,  administration  of  equity. 

When  the  spirit  of  English  commerce  had  embarked  vast  inter- 
ests in  trade,  it  found  itself  without  any  encouragement  from  the 
law,  and  endeavoured  to  work  its  way  to  its  rights  and  its  duties,  by 
the  aid  of  lights  reflected  from  other  countries.  English  merchants 
became  familiar  with  foreign  usages,  and  soon  adopted  them  into 
the  habits  of  their  business,  for  want  of  a  more  certain  guide. 
These  usages  soon  became  general ;  and,  first,  as  a  matter  of 
honor,  and,  then,  as  a  customary  law,  they  fastened  themselves 
upon  all  the  transactions  of  trade.  But  it  was  very  gradually,  that 
the  common  law  recognised  them  in  any  shape,  and  always  with  a 
cold,  hesitating,  and  jealous  caution.  Slade's  Case,  in  4th  Coke's 
Reports,  shows  how  unwilling  the  courts  of  common  law  were  to 
entertain  the  action  of  assumpsit  in  the  plainest  cases.  They 
clung  with  obstinate  reverence  to  the  old  forms  of  the  action  of 
debt,  and  found  the  Benchers  of  the  Inns  of  Court  always  ready 
to  sound  the  alarm  against  innovations.  But  the  doctrine,  now 
universally  admitted,  of  giving  equitable  defences  in  evidence, 
and  sustaining  equitable  claims  in  the  action  of  assumpsit,  would 


PHILLIPS    ON    INSURANCE.  301 

have  astonished  Westminster  Hall,  almost  down  to  the  period  of  the 
Revolution  of  1688,  and  encountered  adversaries  even  in  the  days 
of  Lord  Mansfield.  What  would  one  say,  if  he  were  now  told, 
that,  upon  a  bargain  to  deliver,  at  a  certain  price,  twenty  quarters 
of  wheat  every  year,  during  the  life  of  the  party,  no  action  could 
lie  for  any  breach  of  the  annual  delivery,  until  the  party  was  dead  ? 
And  yet  this  was  certainly  the  law,  while  the  action  of  debt  was 
the  sole  remedy,  (as  it  was  for  ages,)  for  debt  did  not  lie  for  any 
breach,  until  all  the  days  were  incurred,  that  is,  until  the  agreement 
was  ended  by  the  death  of  the  party,  however  inconsistent  it 
might  be  with  the  intention  of  the  contract.  Nay,  even  now,  the 
action  of  debt  stands  on  the  same  nicety,  and  cannot  be  brought 
upon  a  note  for  money,  payable  by  instalments,  until  all  the  days 
of  payment  are  past.  The  sagacity  of  the  old  law  discovered, 
that  a  single  action  only  ought  to  be  brought  upon  a  single  con- 
tract ;  and  to  support  an  action  for  each  instalment  would  be  to 
make  the  contract  divisible.  Such  a  conclusion,  though  readily  re- 
concilable with  common  sense  and  the  intention  of  the  parties,  was 
abhorrent  to  the  settled  forms  in  the  Register.  Such  were  the 
narrow  views  of  the  old  lawyers  ;  and  the  judges,  at  length,  tasked 
their  wits  in  supporting  the  new  device  of  the  action  of  general 
assumpsit,  the  history  of  which  has  been  given,  with  great  ability, 
by  Lord  Loughborough,  in  the  case  of  Rudder  v.  Price,  in  Henry 
Blackstone's  Reports.  How  utterly  inadequate  must  such  a  sys- 
tem have  been  for  the  infinite  diversity  of  contracts  in  our  day  ! 

If  the  difficulties,  which  have  been  adverted  to,  applied  to  con- 
tracts generally,  they  must  have  applied  with  far  greater  force  to 
commercial  contracts,  which  are  so  mixed  up  with  usages  and 
negotiations,  unknown  to  the  common  law,  and  are  so  loose  in 
their  terms,  and  general  in  their  obligations.  In  fact,  the 
Admiralty  was  the  only  court,  in  which  maritime  law  was  much 
understood  or  studied  ;  and  this  court  had  the  misfortune  to  labor 
under  the  heavy  displeasure  of  the  courts  at  Westminster.  The 
civilians  were  always  looked  upon  with  forbidding  jealousy,  and 
every  effort  was  made  to  undervalue  their  learning,  and  depress 
the  popularity  of  the  civil  law.  We  know  well,  what  were  the 
causes  of  this  conduct ;  and  do  not  mean  to  insinuate,  that  it  was 
without  a  very  strong  apology.  But  it  is,  nevertheless,  true,  that 
from  this  very  source,  this  disparaged  civil  law  —  this  great  fountain 
of  rational  jurisprudence  —  the  common  law  has  borrowed,  without 
acknowledgment,  all  that  is  most  useful  and  important  in  its  own 
doctrines  of  contract. 


302  REVIEWS. 

It  were  easy  to  multiply  these  observations,  and  to  demonstrate 
their  correctness,  by  exhibiting  in  detail  the  manner,  in  which  the 
remedies  upon  commercial  contracts  were  hampered  by  technical 
proceedings  under  the  old  law.  But  such  a  detail  would  be  very 
dry,  and,  though  matter  of  curiosity,  would  scarcely  repay  the 
labor  of  perusal,  even  to  a  professional  reader.  It  has,  indeed,  often 
been  said,  that  the  law  merchant  is  a  part  of  the  common  law  of 
Enoland  ;  and  my  Lord  Coke  has  spoken  of  it  in  this  manner  in 
his  Institutes  ;  though  it  would  be  somewhat  difficult  to  find  out, 
what  part  of  the  law  merchant,  as  we  now  understand  it,  existed 
at  that  period.  If  the  expression,  that  the  lea  mercatoria  is  a  part 
of  the  common  law,  be  any  thing  more  than  an  idle  boast,  it  can 
mean  only,  that  the  general  structure  of  the  common  law  is  such, 
that,  without  any  positive  act  of  the  legislature,  it  perpetually 
admits  of  an  incorporation  of  those  principles  and  practices,  which 
are  from  time  to  time  established  among  merchants,  and  which, 
from  their  convenience,  policy,  and  consonance  with  the  general 
system,  are  proper  to  be  recognised  by  judicial  tribunals.  In  this 
sense,  the  expression  is  perfectly  correct  ;  in  any  other  sense,  it 
has  a  tendency  to  mislead. 

Almost  all  the  principles,  that  regulate  our  commercial  concerns, 
are  of  modern  growth,  and  have  been  engrafted  into  the  old  stock 
of  the  law  by  the  skill  of  philosophical,  as  well  as  practical,  jurists. 
One  of  the  leading  cases,  in  which  there  is  some  flourish  made 
about  this  maxim,  that  the  law  merchant  is  part  of  the  common 
law,  is  Vanheath  v.  Turner,  in  the  nineteenth  year  of  the  reign  of 
king  James  the  First.  It  is  reported  in  Winch's  Reports ;  and,  as 
it  happens  now  to  lie  open  before  us,  we  will  extract  the  substance 
of  it,  to  show  how  commercial  contracts  were  dealt  with  at  that 
period.  It  was  a  special  action,  and  Winch  states  it  thus:  "  Peter 
Vanheath  brought  an  action  against  Turner,  and  declared  upon  the 
custom  of  merchants,  that,  if  any  merchant,  over  the  sea,  deliver 
money  to  a  factor,  and  make  a  bill  of  exchange  under  his  seal,  and 
this  is  subscribed  by  the  merchant,  or  by  any  of  the  company  of 
such  merchants,  that  the  merchant  himself,  or  all  the  company,  or 
any  one  in  particular,  may  be  charged  to  pay  that ;  and  he  showed, 
that  one  merchant  was  factor  of  the  company,  of  which  the  defen- 
dant was  one,  and  that  merchant  did  substitute  one  G.,  to  whom 
the  plaintiff  delivered  £100  upon  a  bill  of  exchange,  to  which  bill 
one  B.,  being  one  of  the  company,  set  his  hand  in  England,  and  so 
the  action  accrued   to  the   plaintiff.     The   defendant  pleaded,  nil 


PHILLIPS    ON    INSURANCE.  303 

debet  per  legem;  and  upon  that  the  plaintiff"  demurred  in  law,  and 
the  question  was,  whether  the  defendant  might  wage  his*  law." 
This  is  Winch's  statement  of  the  case,  very  imperfect  to  be  sure, 
but  by  which  it  appears  to  have  been  the  case  of  a  bill  of  exchange, 
drawn  for  money  received  of  the  payee,  by  the  agent  of  a  factor 
of  an  English  partnership  on  the  company,  and  accepted  by  one 
of  the  partners,  and,  upon  that  acceptance,  the  suit  was  brought 
against  the  defendant,  who  was  one  of  the  partners.  Now  the 
first  thing,  that  strikes  us,  is,  that  so  little  did  the  common  law 
recognise  the  custom  of  merchants,  that  it  was  necessary  to  set  it 
forth  specially  in  the  declaration,  so  that  it  might  appear,  how  the 
custom  bound  the  party  ;  and  the  court  might  decide,  whether  it 
was  good  or  not.  After  the  argument,  Lord  Chief  Justice  Hobart 
is  reported  to  have  delivered  his  opinion  as  follows  :  "  If  the  bailiff 
at  the  common  law  make  a  substitute,  the  substitute  is  not  charge- 
able, but  here  the  custom  will  bind  the  law.  Secondly,  he  said, 
two  or  three  merchants  trade  over  the  sea,  who  made  a  factor  there, 
who  takes  money  there,  and  gives  a  bill,  and  this  is  subscribed  by 
one  of  the  company  ;  that  this  should  bind  all  or  any  of  the  com- 
pany is  not  a  good  custom  ;  and  the  custom  of  merchants  is  part 
of  the  common  law  of  this  realm,  of  which  the  judges  ought  to 
take  notice  ;  and  if  any  doubt  arise  to  them  about  their  custom, 
they  may  send  for  the  merchants  to  know  their  custom,  as  they 
may  send  for  the  civilians  to  know  their  law  ;  and  he  thought  the 
defendant  ought  to  be  admitted  to  wage  his  law."  Now,  independ- 
ently of  the  objection,  that,  if  the  defendant  were  admitted  to  wage 
his  law,  that  is  to  say,  discharge  himself  from  the  debt  by  taking 
his  oath,  that  he  did  not  owe  it,  which  of  itself  would  almost  ex- 
tinguish the  negotiability  of  bills,  it  would  sound  very  odd  at  this 
day  to  hear  any  such  doctrine  assumed,  as  that  respecting  the  bad- 
ness of  the  custom.  It  is  now  the  plain  mercantile  law,  as  it  always 
was  common  sense,  that  the  acts  of  a  factor  within  the  scope  of  his 
authority,  whether  clone  by  himself  or  his  substitute,  bind  the  part- 
nership, for  which  he  acts ;  and  the  acts  of  a  partner  in  the  partner- 
ship business  in  like  manner  bind  the  whole.  Such  was  at  that 
period,  as  it  should  seem,  the  custom  of  merchants ;  but  it  was 
strange  to  the  common  lawyers,  and  seems  to  have  harmonized 
very  little  with  the  notions  of  the  court.  Yet  Lord  Hobart  was  an 
eminent  judge  ;  and  we  are  to  attribute  his  views,  not  to  a  want 
of  sagacity,  but  to  a  steady  adherence  to  the  rigid  doctrines  of  the 
common   law  as  to  bailiffs  and  customs,  to  which  the  old  lawyers 


304  REVIEWS. 

clung  with  a  pertinacious  idolatry.  The  truth  is,  that  these  gentle- 
men were,  from  habit  and  professional  feeling,  wedded  to  the  artifi- 
cial notions  of  the  old  system,  and  strenuously  resisted  almost  every 
innovation  upon  it,  both  in  Parliament  and  out ;  and  every  advance 
made  in  adopting  the  custom  of  merchants,  until  the  days  of  Lord 
Mansfield,  was  a  victory  gained,  by  the  spirit  of  the  age  and  the 
influence  of  commerce,  over  professional  prejudices. 

And  this  leads  us  to  say  a  few  words  upon  the  actual  administra- 
tion of  insurance  law,  during  the  days  of  Lord  Mansfield,  and  of 
the  improvements  made  by  him.  We  do  not  know,  that  it  can  be 
done  with  more  brevity  than  by  quoting  an  extract  from  Mr. 
Park. 

"  In  former  times,"  says  he,  "  the  whole  of  the  case  was  left 
generally  to  the  jury,*  without  any  minute  statement  from  the 
bench  of  the  principles  of  law,  on  which  insurances  were  estab- 
lished ;  and,  as  the  verdicts  were  general,  it  was  almost  impossible 
to  determine  from  the  reports  we  now  see,  upon  what  grounds  the 
case  was  decided.  Nay,  even  if  a  doubt  arose  in  point  of  law, 
and  a  case  was  reserved  upon  that  doubt,  it  ivas  afterwards  argued 
in  private,  at  the  chambers  of  the  judge,  who  tried  the  cause,  and 
by  his  single  decision  the  parties  were  bound.  Thus,  whatever  his 
opinion  might  be,  it  was  never  promulgated  to  the  world,  and  could 
never  be  the  rule  of  decision  in  any  future  case.  Lord  Mansfield 
introduced  a  different  mode  of  proceeding  ;  for,  in  his  statement  of 
the  case  to  the  jury,  he  enlarged  upon  the  rules  and  principles  of 
law,  as  applicable  to  that  case,  and  left  it  to  them  to  make  the 
application  of  those  principles  to  the  facts  in  evidence  before  them. 
So  that,  if  a  general  verdict  were  given,  the  ground,  on  which  the 
jury  proceeded,  might  be  more  easily  ascertained.  Besides,  if  any 
real  difficulty  occurred  in  point  of  law,  his  lordship  advised  the  coun- 
sel to  consent  to  a  special  case,  he.  he.  These  cases  are  afterwards 
argued,  not  before  the  judge  in  private,  but  in  open  court,  before 
all  the  judges  of  the  bench,  from  which  the  record  comes.  Thus, 
nice  and  important  questions  are  now  not  hastily  and  unadvisedly 
decided  ;  but  the  parties  have  their  case  seriously  considered  and 
debated  by  the  whole  court ;  the  decision  becomes  notorious  to  the 
world  ;  it  is  recorded  for  a  precedent  of  law,  arising  from  the  facts 
found  ;  and  serves  as  a  rule  to  guide  the  opinion  of  future  judges." 


*  Very  much  as  it  used  to  be  within  our  early  recollection  in  the  courts  of 
Massachusetts. 


PHILLIPS    ON    INSURANCE. 


305 


The  commendation  of  Lord  Mansfield,  which  this  extract  im- 
plies, falls  very  far  short  of  his  real  merits.  The  change  in  the 
course  of  proceedings  did  much  ;  but  the  genius,  liberality,  and 
extensive  learning  of  this  extraordinary  man  gave  a  new  and  en- 
during vigor  to  the  system  itself.  He  may  be  truly  said  to  have 
created  the  commercial  law  of  England  ;  and  during  his  long, 
active,  and  splendid  life,  it  attained  a  maturity  and  perfection,  which, 
perhaps,  no  other  nation  can  boast,  and  which  will  transmit  his  name 
to  posterity,  as  one  of  the  greatest  benefactors  of  jurisprudence. 
The  achievement  was  not,  indeed,  the  result  of  his  own  unassisted 
mind.  He  read  extensively  the  maritime  laws  of  foreign  countries, 
and  with  an  admirable  mixture  of  boldness,  discretion,  and  sagacity, 
infused  all  their  most  valuable  principles  into  the  municipal  code  of 
England.  At  the  distance  of  half  a  century,  one  looks  back 
with  wonder  upon  the  labors  of  this  single  judge.  His  suc- 
cessors have  here  and  there  added  some  pillars  to  the  edifice  ; 
but  the  plan,  the  proportions,  the  ornaments,  the  substructions,  all, 
that  is  solid,  and  fundamental,  and  attractive,  belong  to  him,  as  the 
original  architect.  Standing  in  the  temple  of  commercial  law,  the 
most  sober  jurist,  while  contemplating  Lord  Mansfield's  labors, 
might  with  enthusiasm  exclaim,  Si  monamentum  quaris,  circumspice. 
Dropping,  however, 'figurative  language,  we  may  with  plain  gravity- 
venture  to  suggest  a  doubt,  whether  the  deviations  from  his  doc- 
trines, introduced  by  his  successors,  have  not  been  inconvenient  in 
practice,  and  mischievous  in  principle.  They  partake  too  much  of 
the  subtilties  and  technical  refinements  of  the  common  law,  and 
stand  little  upon  general  reasoning,  and  those  analogies,  which 
equity  and  a  comprehensive  view  of  the  business  of  commerce 
would  commend  for  adoption.  Lord  Kenyon  was  an  honest,  intel- 
ligent, and  learned  magistrate ;  but  from  habit,  and  education,  and, 
perhaps,  original  cast  of  mind,  he  does  not  seem  ever  to  have  en- 
tered into  the  true  spirit  of  commercial  jurisprudence.  He  took 
no  comprehensive  principles  in  his  range,  and  contented  himself  by 
administering  the  maritime  law,  as  he  found  it,  without  any  ambition 
to  extend  its  boundaries.  Lord  Ellenborough  possessed  a  more 
powerful  and  vigorous  mind.  But  his  early  reading,  beyond  the 
walks  of  the  common  law,  does  not  seem  to  have  been  very  exten- 
sive ;  and  he  manifested  on  many  occasions  a  desire  to  bring  down 
the  maritime  doctrines  to  the  standard  of  the  common  law,  rather 
than  to  give  to  the  latter  the  expansion  of  universal  jurisprudence. 
He  was  certainly  a  great  judge,  of  a  clear,  decisive,  and  rapid 
39 


306  REVIEWS. 

mind,  but  devoted  to  England,  and  feeling  little  enthusiasm  and 
less  curiosity  to  embark  in  foreign  studies.  The  times  too,  in  which 
he  lived,  were  not  propitious  to  any  extensive  researches  into  con- 
tinental jurisprudence.  They  were  times  of  deep  political  and 
national  struggles,  when  the  spirit  of  war  and  conquest  attempted 
to  overturn  the  established  doctrines  of  public  law  ;  and  those,  who 
clung  to  old  institutions,  felt,  that  resistance  to  innovation  was  safety, 
and  that  dangers  lurked  in  ambush  under  the  cover  of  general 
principles.  Fortunate  will  it  be,  however,  for  England,  if  in  the 
present  peaceful  times  there  shall  be  found  a  successor  of  Lord 
Mansfield,  who  breathes  his  liberal  spirit,  and  (ills  up  his  splendid 
outline  of  principles. 

It  cannot,  however,  be  disguised,  that  there  are  a  national  pride 
and  loftiness  of  pretension  occasionally  mixed  up  in  the  character 
of  Englishmen,  which  lead  them,  especially  as  public  men,  to  look 
down,  sometimes  with  contempt,  but  more  generally  with  indiffer- 
ence, upon  the  usages,  laws,  and  institutions  of  other  countries. 
Nil  admirari  is  not  always  a  safe  or  useful  national  motto.  The 
English  bar  is  not  exempt  from  this  infirmity,  and  betrays  it  some- 
times, when  it  would  be  more  honorable  to  seek  instruction  from 
foreign  sources.  It  is  curious  to  observe,  how  little  of  foreign 
jurisprudence  is  brought  into  the  discussions  of  their  courts  of  com- 
mon law  (for  it  is  far  otherwise  in  their  admiralty  and  civil  law 
courts)  upon  topics,  which  seem  most  powerfully  to  demand  its 
introduction.  Even  upon  questions  of  the  operation  of  the  Lex 
Loci,  how  rarely  has  Continental  or  even  Scottish  jurisprudence  been 
cited  with  effect  in  these  tribunals  !  Ireland  is  separated  but  by  a 
narrow  strait.  Her  jurisprudence  is  in  substance  that  of  England. 
Her  most  distinguished  lawyers  and  judges  have  been  bred  in  the 
English  Inns  of  Court.  In  eloquence,  in  learning,  in  general  ability, 
they  are  inferior  to  few  in  the  United  Kingdom.  Yet,  who  ever 
heard  the  citation  in  an  English  court  of  an  Irish  decision  ?  With 
the  exception  of  a  few  of  Lord  Redesdale's,  which  probably  owe 
their  admittance  into  English  society  to  his  elevated  rank  in  the 
House  of  Lords,  we  scarcely  recollect  any  in  the  course  of  our  read- 
ing. Why  should  they  not  be  cited  ?  Was  Sir  John  Mitford,  when 
he  wrote  his  excellent  Treatise  on  Equity  Pleadings,  or  held  the 
office  of  attorney  general  of  England,  superior  to  Lord  Redesdale, 
when  he  held  the  seals  of  Ireland  ?  Is  Lord  Manners  less  distin- 
guished, as  an  Irish  chancellor,  than  when  he  lilled  the  ollice  of  a 
baron  of  the  English  exchequer  r 


PHILLIPS    OS    INSURANCE.  307 

Perhaps  it  may  bo  suggested,  as  an  apology,  that  the  English 
law  is  of  itself  so  vast  a  field,  that  it  can  scarcely  be  mastered,  and 
it  is  unnecessary  to  attempt  any  foreign  conquests;  that  the  decis- 
sions  of  English  judges  are  alone  of  authority ;  and  it  is  unwise  and 
impolitic  to  open  wider  inquiries,  which  would  perplex  and  obstruct 
the  already  darkened  and  crowded  avenues  of  professional  studies. 
There  is  something  plausible  in  such  a  suggestion  :  but  it  vanishes 
on  a  close  examination  of  the  subject.  If  the  English  common 
law  were  perfect  in  itself,  and  were  susceptible  of  no  improvement, 
it  might  justly  refuse  any  foreign  admixture.  But  no  one  will 
be  so  rash  as  to  advance  a  pretension  of  this  sort.  The  common 
law  is  gradually  changing  its  old  channels,  and  wearing  new.  It 
has  continual  accessions  on  some  sides;  and,  on  others,  leaves  behind 
vast  accumulations,  which  now  serve  little  other  purpose  than  to 
show,  what  were  its  former  boundaries.  What  has  become  of  the 
feudal  tenures,  and  the  thousand  questions  of  right  and  might, 
which  formerly  came  home,  not  merely  to  the  lords  of  the  manors, 
but  to  every  thatched  cottage  of  the  kingdom  ?  What  has  be- 
come of  real  actions,  with  all  the  complicated  apparatus  of  proceed- 
ings, with  which  they  so  much  perplexed,  not  to  say  confounded 
and  overwhelmed,  the  profession  ?  More  than  sixty  years  ago  we 
were  told,  in  the  celebrated  judgment  of  Taylor  v.  Horde,  that  the 
precise  definition  of  what  constituted  a  disseisin,  was  not  then 
known,  and  could  not  be  traced  in  the  books.  And  yet  almost  all 
the  contests  of  the  old  law7  were  upon  questions,  in  which  the  law 
of  disseisins  was  a  material  ingredient.  What  has  become  of  the 
nice  and  curious  distinctions  in  respect  to  uses  and  trusts,  which,  in 
Lord  Coke's  time,  and  in  earlier  periods,  exercised  all  the  inge- 
nuity of  the  profession  ?  In  a  practical  sense  they  have  almost 
disappeared,  or  are  felt  to  be  of  little  value,  since  the  courts  of 
equity  have  exerted  their  most  salutary  jurisdiction  over  this  vast 
field  of  litigation.  Where  in  the  old  law  shall  we  find  principles  to 
adjust  the  innumerable  questions  arising  in  bankruptcy  ?  Where 
shall  we  look  for  the  doctrine  of  liens,  of  stoppage  in  transitu,  of 
marshalling  assets,  of  the  execution  of  charities,  in  short,  of  the 
mass  of  business,  in  which  modern  legal  and  equitable  jurisdiction 
is  employed  ?  It  is  obvious,  that  the  law  must  fashion  itself  to  the 
wants,  and,  in  some  sort,  to  the  spirit  of  the  age.  Its  stubborn 
rules,  if  they  are  not  broken  down,  must  bend  to  the  demands  of 
society.  A  merely  written  code  must  for  ever  be  inadequate  to  the 
business  of  a  nation  increasing  in  wealth  and   commerce,  and  con- 


308  REVIEWS. 

necting  itself  with  the  interests  of  all  the  world.  A  customary- 
law,  adopted  in  rude  and  barbarous  times,  must  melt  away,  or  mix 
itself  with  the  new  materials  of  more  refined  ages.  Human  trans- 
actions are  dividing  and  subdividing  themselves  into  such  innumera- 
ble varieties,  that  they  cannot  be  adjusted  or  bounded  by  any 
written  or  positive  legislation.  The  law,  to  be  rational  and  practi- 
cable, must,  as  was  finely  said  by  Lord  Ellenborough  of  the  rules 
of  evidence,  expand  with  the  exigencies  of  society.  As  new  cases 
arise,  they  must  be  governed  by  new  principles  ;  and  though  we 
may  not  remove  ancient  landmarks,  we  must  put  down  new  ones, 
when  the  old  are  not  safe  guides,  and  no  longer  indicate  the 
travelled  road,  or  mark  the  busy,  shifting  channels  of  commerce. 

It  is  most  manifest,  therefore,  that  the  English  law,  working,  as 
it  does,  into  the  business  of  a  nation  crowded  with  commerce  and 
manufactures,  must  for  ever  be  in  search  of  equitable  principles  to 
be  applied  to  the  new  combinations  of  circumstances,  which  are 
daily  springing  up  to  perplex  its  courts.  In  adopting  new  rules  it 
is  indispensable  to  look  to  public  convenience,  mutual  equities,  the 
course  of  trade,  and  even  foreign  intercourse.  It  is  plain,  that,  in 
such  inquiries,  the  customary  and  positive  law  of  foreign  countries, 
as  the  result  of  extensive  experience,  must  be  of  very  great  utility. 
No  nation  can  be  so  vain  as  to  imagine,  that  she  possesses  all  wis- 
dom and  all  excellence.  No  civilized  nation  is  so  humble,  that  her 
usages,  laws,  and  regulations  do  not  present  many  things  for  instruc- 
tion, and  some  for  imitation.  In  respect  to  the  general  principles 
of  jurisprudence,  those  which  are  applicable  to  the  ordinary  con- 
cerns of  human  life  in  all  countries,  and  ought  to  be  law  in  all, 
because  they  are  founded  in  common  sense  and  common  justice,  it 
is  undeniable,  that  much  light  may  arise  from  the  investigations  of 
foreign  jurists.  Genius  and  learning  can  never  fail  to  illustrate  the 
principles  of  universal  law,  even  when  the  primary  object  is  merely 
to  expound  municipal  institutions.  The  Dutch,  the  German,  the 
Italian,  the  Spanish,  or  the  French  civilian  is  not  less  a  master  of 
equity  and  rational  jurisprudence,  when  he  deals  with  the  Roman 
law,  colored,  and,  it  may  be,  shaded,  by  his  own  local  customs  and 
ordinances,  than  the  Lord  Chancellor  on  the  woolsack,  enforcing 
trusts  in  foro  conscientia,  or  the  Lord  Chief  Justice,  when  expound- 
ing commercial  contracts  at  the  Guildhall  of  London.  The  truth 
is,  that  the  common  law,  however  reluctant  it  may  be  to  make  the 
acknowledgment,  and  however  boastful  it  may  be  of  its  own  per- 
fection, owes  to  the  civil   law,   and   its  elegant    and   indefatigable 


PHILLIPS    ON    INSURANCE.  309 

commentators,  (as  has  been  already  hinted,)  almost  all  its  valuable 
doctrines  and  expositions  of  the  law  of  contract.  The  very  action 
of  assumpsit,  in  its  modern  refinements,  breathes  the  spirit  of  its 
origin.  It  is  altogether  Roman  and  Praetorian.  And  there  never 
has  been  a  period,  in  which  the  common  lawyers,  with  all  their 
hostility  to  the  civil  law,  have  not  been  compelled  to  borrow  its 
precepts.  The  early  work  of  Bracton  shows,  how  solicitous  some 
of  the  sages  were,  even  in  that  rude  age,  to  infuse  into  their  own 
code  some  of  that  masculine  sense,  which  found  favor  in  the  days 
of  Justinian. 

What,  indeed,  should  we  think,  in  the  present  times,  of  men, 
who  affect  to  be  indifferent  to  the  writings  of  such  authors  as 
D'Aguesseau,  Domat,  Valin,  Pothier,  and  Emerigon  ?  Mr.  Du- 
ponceau,  in  his  late  excellent  Dissertation  on  the  Jurisdiction  of 
the  Courts  of  the  United  States,  —  a  work,  that  should  be  pro- 
foundly studied  by  all  American  lawyers,  —  has  said,  that  the 
works  of  Pothier  were  warmly  recommended  by  Sir  William  Jones 
to  his  countrymen,  "  but  without  success."  We  hope  his  language 
is  too  strong.  That  such  a  writer  as  Pothier  should  be  neglected 
by  Englishmen,  would  be  a  disgrace  to  the  learning  and  literature 
of  the  nation.  Who  has  written  with  so  much  purity  of  principle, 
such  sound  sense,  such  exact  judgment,  such  practical  propriety, 
on  all  the  leading  divisions  of  contracts  ?  Who  has  treated  the 
whole  subject  of  maritime  law  so  fully,  so  profoundly,  so  truly  with 
a  view  to  its  equity  and  advancement,  as  Valin  ?  Who  has 
equalled  Emerigon,  as  a  theoretical  and  practical  writer  on  the  law 
of  insurance  ?  He  has  exhausted  every  topic,  so  far  as  materials 
were  within  his  reach  ;  and,  upon  all  new  questions,  his  work,  for 
illustration,  and  authorities,  and  usages,  is  still  unrivalled. 

We  think,  indeed,  that  we  perceive  the  dawn  of  a  brighter  age 
in  the  English  law,  when  the  foreign  lights,  which  have  been,  slowly 
and  by  stealth,  admitted  into  Westminster  Hall,  will  be  hailed  with 
a  liberal  spirit,  and  will  irradiate  its  bar  and  benches.  Mr.  Joy,  in 
the  case  of  M'lver  v.  Henderson,  (4  M.  and  S.  576,)  and  Mr. 
Campbell  and  Mr.  Bosanquet,  in  the  case  of  Bush  v.  the  Royal 
Exchange  Insurance  Company,  (2  Barn,  and  Aid.  72,)  showed  a 
familiar  acquaintance  with  the  foreign  maritime  jurists,  and  argued 
with  great  effect  from  their  authority  ;  and  on  a  comparatively 
recent  occasion,  (5  M.  and  S.  b'56.)  when  Emerigon  was  cited, 
Lord  Ellenborough  said,  "  Emerigon,  whose  name  has  been  so 
frequently  mentioned  in  the  course  of  the  argument,  is  entitled  to 


310  REVIEWS. 

all  the  respect,  which  is  due  to  a  very  learned  writer,  discussing  a 
subject  with  great  ability,  diligence,  and  learning,  and  adverting  to 
all  the  authorities  relating  to  it."  Mr.  Justice  Bailey  and  Mr. 
Justice  Best,  who  are  judges  of  uncommon  ability,  have  repeat- 
edly, of  late,  adverted  to  the  French  maritime  authors  with  dis- 
criminating accuracy,  and  in  terms  of  the  most  unreserved  respect. 
We  consider  these  indications  of  a  liberal  study  of  foreign  juris- 
prudence, as  extremely  creditable  to  this  age  of  the  common  law ; 
and,  we  augur  from  them,  for  the  future,  a  far  more  expanded  view 
of  commercial  questions  than  has  usually  been  encouraged  since 
the  days  of  Lord  Mansfield. 

If  we  were  disposed  to  recommend  the  study  of  public  and  foreign 
law  to  common  lawyers,  we  do  not  know  how  we  could  better  do 
it  than  by  pointing  out  some  illustrious  examples  of  its  successful 
accomplishment  in  our  own  age.  Sir  James  Mackintosh,  of  late 
years  so  distinguished  in  Parliament,  as  a  friend  to  liberty,  to  sci- 
ence, and  liberal  institutions,  and  who  is,  at  the  same  time,  a  most 
humane  and  philosophical  jurist,  has,  in  his  incomparable  Introduc- 
tory Discourse  to  his  Lectures  on  the  Law  of  Nations,  given  us  a 
finished  specimen  of  the  advantages  resulting  from  the  mastery  of 
foreign  public  writers.  It  would,  perhaps,  be  difficult  to  select  from 
the  whole  mass  of  modern  literature  a  discourse  of  equal  length, 
which  is  so  just  and  beautiful,  so  accurate  and  profound,  so  cap- 
tivating and  enlightening,  so  enriched  with  the  refinements  of  mod- 
ern learning,  and  the  simple  grandeur  of  ancient  principles.  It 
should  be  read  by  every  student,  for  instruction  and  purity  of 
sentiment ;  and  by  lawyers  of  graver  years,  to  refresh  their  souls 
with  inquiries,  which  may  elevate  them  above  the  narrow  influences 
of  a  dry  and  hardening  practice. 

But  a  still  more  striking  example  is  Lord  Stowell,  (better  known 
in  this  country,  as  Sir  William  Scott,)  the  present  venerable  Judge 
of  the  High  Court  of  Admiralty,  of  whom  it  may  be  justly  said, 
in  the  language  of  Cicero,  that  he  is  jurispcritorum  eloquentissi- 
mus.  This  great  man  has  presided  in  the  Court  of  Admiralty 
since  the  year  1798 ;  and  during  this  period  he  has  commanded 
the  admiration  of  all  Europe,  by  the  learning,  acuteness,  and  fin- 
ished elegance  of  his  judgments.  There  was  a  time,  when  it  was 
somewhat  the  fashion  in  this  country  to  undervalue  the  solid  excel- 
lence of  his  opinions.  Our  commerce  was  brought  so  directly  in 
conflict  with  his  administration  of  prize  law,  that  it  was  difficult  to 
avoid  prejudices  on  a  subject,  in   which,  as  neutrals,  we  had  so 


PHILLIPS    ON    INSURANCE.  311 

deep  an  interest,  and  were  so  liable  to  indulge  strong  animosities. 
But  time  has  dissipated  many  delusions  on  this  subject;  and  we 
have  had,  in  the  late  war,  ample  opportunity  to  try  the  accuracy  of 
his  principles,  when  we  changed  the  character  of  neutrals  for  that 
of  belligerents.  We  can  now  look  back  upon  his  decisions  with 
somewhat  of  the  calmness  and  sobriety  of  a  philosophical  historian. 
With  the  exception  of  the  doctrines  respecting  the  colonial  trade, 
in  which  it  is  but  common  justice  to  admit,  that  he  either  acted 
upon  public  Orders  in  Council,  which  he  was  bound  to  obey,  or 
upon  the  Rule  of  1756,  which  his  Government  had  previously  chosen 
to  consider,  as  an  established  part  of  its  prize  code,  the  differences 
between  his  decisions  upon  prize  law,  and  those  promulgated  by 
the  Supreme  Court  of  the  United  States,  are  so  few,  as  to  be 
almost  evanescent.  After  the  most  powerful  arguments  under  the 
highest  political  excitements,  and  with  the  aid  of  the  most  striking 
eloquence,  there  has  been  but  a  single  principle  adopted  by  him, 
which  has  been  deliberately  overruled  by  the  Supreme  Court  ;  and 
on  that  occasion  there  was  a  serious  difference  of  opinion  among 
the  judges. 

But  it  is  not  in  respect  to  prize  law,  that  we  intend  to  speak  of 
Lord  Stowell,  though  he  every  where  exhibits  the  most  profound 
and  accurate  knowledge  of  all  the  publicists  of  continental  Europe  ; 
but,  as  a  maritime  judge,  deciding,  in  what  is  called  the  Instance 
Court,  the  great  principles  of  commercial  jurisprudence.  His  su- 
periority in  this  department  over  the  technical  reasoning  of  the 
common  lawyers  is  most  signal.  He  discusses  every  question  with 
a  persuasive  and  comprehensive  liberality,  with  a  tone  of  general 
equity,  a  knowledge  of  maritime  usages,  and  a  disposition  to  con- 
sider maritime  jurisprudence  as  the  unwritten  law  of  the  world, 
rather  than  the  municipal  monopoly  of  a  single  nation  ;  and  he 
draws  from  all  sources,  ancient  and  modern,  the  best  and  purest 
principles,  to  aid,  to  illustrate,  and  to  confirm  his  own  judgment. 
With  him  the  grave  learning  of  Grolius,  the  acute,  bold,  and 
somewhat  vehement  discussions  of  Bynkershoek,  the  reverend 
testimonies  of  the  Consolato  del  Mare,  the  collections  of  Cleirac, 
the  busy,  practical  sense  of  Roccus,  the  brief  but  clear  text  of 
Heineccius,  the  various  and  exhausting  labors  of  Casaregis,  the 
argumentative  commentaries  and  luminous  treatises  of  the  French 
jurists,  appear  as  perfectly  familiar,  as  the  writers  of  his  own  age 
and  country.  He  evidently  reposes  upon  them,  even  when  he 
does  not  cite  them  ;  and  transfuses  into   his  own  eloquent  and  im- 


312  REVIEWS. 

pressive  judgments,  whatever  they  afford  of  general  doctrine,  or 
just  interpretation,  upon  all  the  doubtful  questions  of  maritime  law. 
One  scarcely  knows,  which  most  to  admire,  the  simplicity  of  his 
principles,  the  classical  beauty  of  his  diction,  the  calm  and  dispas- 
sionate spirit  of  his  inquiries,  his  critical  but  candid  estimate  of  evi- 
dence, his  strong  love  of  equity,  his  deep  indignation  against  fraud, 
chastened  by  habitual  moderation,  or  that  pervading  common 
sense,  which  looks  into,  and  feels,  and  acts  upon  the  business  of 
life  with  a  discriminating,  but  indulgent  eye,  content  to  administer 
practical  good  without  ostentation,  and  wasting  nothing  upon  specu- 
lations, whose  origin  is  enthusiasm,  and  whose  end  is  uncertainty 
or  mischief.  Even  when  he  deals  with  subjects  of  another  class, 
as  in  ecclesiastical  causes  in  the  Consistory  Court,  one  is  surprised 
to  see  with  what  admirable  propriety  he  uses  his  knowledge  of 
general  jurisprudence  and  the  civil  law,  to  give  vigor  to  his 
decrees.  And  upon  questions  involving  the  lex  loci,  he  has 
triumphantly  shown,  that  he  can  master  the  results  of  foreign 
jurisprudence  ;  and,  as  in  the  very  interesting  case  of  Dalrymple 
v.  Dalrymple,  compose  the  strifes  of  the  learned  advocates  of  the 
Scottish  bar,  and  fix  for  ever  upon  an  immovable  basis  a  question, 
which  had  vexed  the  domestic  forum  of  Scotland  for  a  long  period 
with  its  doubts  and  difficulties.  We  say,  without  hesitation,  that 
the  character  of  this  eminent  judge,  whatever  may  have  been  his 
original  genius  and  ability,  owes  its  present  elevation,  in  a  great 
measure,  to  his  enlarged  studies,  and  his  cultivation  of  universal 
jurisprudence.  Take,  for  instance,  his  celebrated  judgment  in  the 
case  of  the  Gratitudine,  in  1801,  on  the  right  of  the  master  to  hy- 
pothecate the  cargo,  as  well  as  the  ship  and  freight,  for  the  neces- 
sities of  the  voyage ;  or  the  case  of  the  Julianna,  in  1822,  on  the 
invalidity  of  a  stipulation  in  the  shipping-paper  to  cut  off  the  sea- 
men from  wages,  unless  the  voyage  should  be  performed  to  the 
final  port  of  destination  ;  where  shall  we  find  in  the  annals  of  the 
common  law,  except  among  the  judgments  of  Lord  Mansfield, 
cases  argued  out  upon  such  rational  and  enlightened  principles, 
aided  by  sober  and  various  learning,  and  ending  in  conclusions  so 
irresistible  ?  One  seems  in  them  to  be  reading,  not  the  law  of 
England  merely,  but  the  law  of  the  world  —  the  results  of  human 
reason  and  human  learning,  acting  on  human  concerns,  with  refer- 
ence to  principles  absolutely  universal  in  their  justice  and  conven- 
ience of  application.  We  wish  American  lawyers  would  study  the 
fine  models  of  this  sagacious  judge  with  a  diligence  proportionate 
to  their  importance  and  utility- 


PHILLIPS     ON     IXSIRYNCE.  313 

We  cannot  quit  this  subject,  without  recommending  to  our 
brethren  of  the  English  bar,  if,  perchance,  these  pages  should 
attract  their  notice,  the  study  of  American  jurisprudence.  Of 
course  we  do  not  mean,  of  our  local  laws  and  peculiar  systems  ;  for 
we  should  as  little  advise  this,  as  we  should  to  our  own  lawyers 
the  study  of  the  English  law  of  tythes,  and  moduses,  and  copy- 
holds, from  which  we  are  separated  toto  cailo.  What  we  do  re- 
commend is,  the  study  of  our  commercial  adjudications.  This  is 
not  said,  we  hope  they  will  believe,  from  vanity,  under  a  false 
estimate  of  our  own  attainments.  American  lawyers  are  in  the 
constant  habit  of  reading  all  the  English  reports ;  and  it  would  be 
worse  than  affectation  to  attempt  to  disguise,  that  we  are  greatly 
instructed  and  improved  by  them.  They  present  to  us  the  fruits 
of  great  experience,  industry,  intelligence,  and  ability.  But  we 
"  also  are  painters."  The  American  courts,  collectively  consid- 
ered, embrace  a  large  proportion  of  talent  and  learning,  and  they 
are  perpetually  engaged  in  many  of  the  discussions,  which  perplex 
the  English  tribunals.  Of  course,  there  is  a  great  diversity  in  the 
attainments  of  the  judges  and  lawyers  in  the  different  States  com- 
posing the  Union,  arising  from  local  circumstances.  But  in  the 
principal  Atlantic  States,  the  system  of  maritime  law  is  of  daily 
application  to  business,  and  is  studied  with  earnest  diligence. 

In  one  respect,  there  is  a  striking  contrast  between  the  state  of 
the  English  and  that  of  the  American  bar.  In  England,  the  pro- 
fession is  broken  up  into  distinct  classes.  The  civilians  engross 
exclusively  the  admiralty  and  ecclesiastical  courts,  and  even  these 
are  separated  into  proctors  and  advocates.  The  chancery  courts 
have  their  own  solicitors  and  counsellors.  The  barristers  and  Ser- 
jeants of  the  common  law  generally  confine  themselves  to  the 
practice  of  their  own  particular  courts.  The  attorney  is  a  being, 
who  deals  with  processes  and  proceedings  in  suits,  but  is  shut  out 
from  the  rights  of  arguing  counsel.  The  conveyancer  pores  over 
his  own  peculiar  studies  for  chamber-practice  ;  and  the  special 
pleader,  if  he  wins  his  way  to  a  lucrative  practice,  sits  under  the 
bar  a  quiet  spectator  of  forensic  disputations,  unless  the  niceties  of 
his  own  craft  come  into  play.  In  America,  all  this  is  different. 
The  same  gentleman  acts,  or  may  act,  (with  scarcely  an  excep- 
tion,) in  all  these  different  capacities  ;  and  in  the  course  of  a  single 
term  of  a  court  may  assume  many  of  the  functions  of  all  of  them. 
He  is,  or  may  be,  at  once,  proctor,  advocate,  solicitor,  attorney,  con- 
veyancer, and  pleader  ;  he  may  draw  libels  and  bills,  frame  pleas  and 
40 


314  REVIEWS. 

answers,  direct  process,  prepare  briefs,  sketch  drafts  of  conveyances, 
argue  questions  of  fact  to  the  jury,  and  questions  of  law  to  the  court ; 
and  find  himself  quite  at  home  in  all  these  various  employments. 
If  it  should  be  thought,  that  this  singleness  of  occupation  and 
subdivision  of  labor  give  to  the  English  lawyer  more  accuracy, 
minute  knowledge,  and  perfect  facility  in  the  use  of  his  materials, 
they  carry  with  them,  on  the  other  hand,  some  disadvantages. 
The  general  tendency  of  such  close  pursuits  is  to  narrow  down 
the  mind  to  mere  technical  rules  ;  to  exhaust  its  powers  upon 
subtile  distinctions  and  dull  details  ;  to  make  professional  life  an 
affair  of  collections  and  recollections  ;  to  create  an  acute  and  nice 
discrimination,  rather  than  a  solid  and  comprehensive  understand- 
ing. What  is  gained  by  skill  in  the  manipulation,  is  lost  in  the 
vigor  of  the  blow. 

The  course  of  the  American  lawyer  does  not,  it  must  be  con- 
fessed, generally  lead  to  such  exact  inquiries,  and  such  perfect 
finish,  although  there  have  been  eminent  examples  to  the  contrary. 
But  a  survey  of  the  whole  structure  of  the  law  conducts  him  to 
large  and  elevated  views,  to  brilliant  and  successful  illustrations, 
to  reasonings  from  various  contrasts  and  analogies  of  the  law,  and 
to  those  generalizations,  which  invigorate  eloquence,  and  shadow 
out  the  finer  forms  of  thought.  His  learning  must  be  deep  and 
various,  even  if  it  is  not  in  all  respects  exact ;  and  will  be  tinctured 
with  the  hues  of  all  his  studies.  His  law  silently  acquires  the  tone 
and  spirit  of  equity  ;  and  his  commercial  discussions  urge  him  to 
search  for,  and  adopt  in  argument,  whatever  of  excellence  the 
genius  and  erudition  of  foreign  jurists  have  brought  to  his  notice. 
He  knows,  too,  that  in  the  American  courts  there  is  no  disposition 
to  discourage  the  study  of  foreign  jurisprudence.  There  is  a  free- 
dom from  restraint,  and  an  habitual  eagerness  to  expand  our  law, 
which  favor  every  attempt  to  build  up  commercial  doctrines  upon 
the  most  liberal  foundation.  We  do  not  mean  to  aflirm,  that 
American  lawyers  in  general  cultivate  such  extensive  studies,  or 
are  distinguished  by  such  elevated  attainments.  What  we  mean 
to  assert  is,  that  the  general  tendency  of  our  system  is  to  excite  an 
ambition  for  such  studies  and  attainments,  and  that  the  genius  of 
the  profession  is  perpetually  attracted  in  its  researches  and  reason- 
ings to  those  general  principles,  which  constitute  the  philosophy  of 
the  law.  We  could  point  out  living  models,  who  exemplify  all, 
that  we  have  suggested  in  commendation  of  the  American  system ; 
and   amon^  the  illustrious   dead,  within  our  own  brief  career,  we 


PHILLIPS    ON    INSURANCE.  315 

fear  no  rebuke  in  naming  Hamilton,  Dexter,  Pinkney,  and  Wells. 
But  it  is  unnecessary  to  trust  to  assertion.  The  records  are  before 
us,  and  can  be  searched.  Look  to  the  judgments  of  the  supreme 
courts  in  the  States  of  Pennsylvania,  New  York,  and  Massachu- 
setts, upon  questions  of  maritime  and  commercial  law,  as  they 
stand  in  the  Reports  of  Messrs.  Tyng,  Binney,  Johnson,  and  Ser- 
geant and  Rawle.  It  is  impossible  not  to  feel,  that  the  arguments 
in  these  causes,  and  the  judgments,  which  followed  them,  would 
do  credit  to  the  tribunals  of  any  country.  They  are  full  of  learn- 
ing, fine  reasoning,  acute  distinctions,  and  solid  principles,  such  as 
might  well  guide  the  sober  sense  of  Westminster  Hall,  and  cast  a 
strong  light  upon  its  oracles.  Look  to  the  chancery  decisions  of 
New  York.  Where  shall  we  find  in  our  times  a  more  thorough 
mastery  of  the  civil  and  maritime,  of  the  common  and  equity  law, 
where  a  more  untiring  research,  a  more  critical  exactness,  a  more 
philosophical  spirit,  than  is  displayed  in  the  elaborate  arguments 
of  her  late  chancellor  ? 

We  think,  therefore,  that,  in  recommending  the  labors  of  the 
American  lawyers  and  judges  to  the  attention  of  English  lawyers, 
we  do  them  a  service,  by  which  they  may  greatly  profit ;  and  in 
this  manner  we  may  make  a  suitable  return  for  the  many  aids, 
which  America  received  from  the  parent  country,  when  her  own 
jurisprudence  was  loose,  unformed,  and  provincial. 

The  progress,  indeed,  that  has  been  made  in  America,  in  the 
knowledge  and  administration  of  commercial  law,  since  the  Revo- 
lution, is  very  extraordinary  ;  and  in  no  branch  more  striking  than 
in  that  of  Insurance.  Before  that  event,  policies  of  insurance 
were  of  rare  use  among  us.  Our  intercourse  with  the  mother 
country  was  so  direct  and  so  dependent,  that  most  of  the  impor- 
tant risks  were  underwritten  in  London,  through  the  instrumentality 
of  agents.  Our  printed  reports  do  not  reach  far  back  beyond  the 
revolutionary  period  ;  but  the  manuscripts  we  have  seen,  and  the 
absence  of  references  to  cases,  in  the  arguments  even  of  ante- 
revolutionary  lawyers,  establish  to  the  satisfaction  of  all  accurate 
observers,  that  the  subject  was  new  to  the  studies  of  the  bar.  The 
earliest,  and,  indeed,  the  only  case  we  recollect  in  any  of  our 
books,  before  the  Declaration  of  Independence,  is  that  of  Story 
and  Wharton  v.  Strettell,  in  1764,  reported  by  Mr.  Dallas  in  the 
first  volume  of  his  Reports.  It  was  not  until  the  French  revolu- 
tion, by  opening  new  and  extensive  sources  of  profitable  trade, 
gave  an   impulse    to    our   maritime   enterprise,   that    the    contract 


316  REVIEW-. 

struggled  into  notice  from  a  state  of  languor,  and  became  common 
in  our  commercial  cities.  It  immediately  advanced  with  almost 
inconceivable  rapidity,  and  became  so  profitable,  tbat  it  may  truly 
be  said  to  have  laid  the  foundation  of  many  fortunes  in  our 
country.  The  profession  soon  felt  the  necessity  of  an  entire 
mastery  of  the  subject,  and  applied  itself  with  a  most  commend- 
able diligence  to  the  study  of  all  the  English  and  other  foreign 
authorities.  And  within  the  last  thirty  years,  probably  as  large 
a  number  of  cases  of  insurance  have  been  contested  and  decided 
in  the  American  courts,  upon  points  of  difficulty  and  extensive 
application,  as  in  the  courts  of  England  in  the  same  period.  We 
do  not  hesitate  to  assert,  that  these  cases  have  been  argued  with 
as  much  learning  and  ability,  and  with  as  comprehensive  a  view  of 
the  true  principles  of  the  contract,  as  any  in  the  brightest  days  of 
the  English  law.  And  we  are  greatly  deceived,  if,  upon  a  general 
examination,  they  will  not  be  found  by  English  lawyers  and 
judges,  to  be  full  of  useful  instruction,  and  worthy  of  their  deliberate 
study.  Many  of  them  discuss  questions  arising  from  the  compli- 
cated state  of  our  commerce,  as  a  neutral  nation,  which  have  not, 
as  yet,  undergone  any  adjudication  in  the  English  courts. 

We  will  close  this  topic  with  a  very  short  historical  sketch  of 
the  principal  modern  English  treatises  on  insurance.  We  pass 
over,  at  once,  without  any  particular  notice,  the  remarks  on  the 
subject  contained  in  the  work  on  Bills  of  Exchange  and  Insurance, 
ascribed  to  Mr.  Cunningham,  and  in  Mr.  Parker's  Laws  of  Ship- 
ping and  Insurance,  as  they  were  so  imperfect  as  to  have  sunk 
into  obscurity.  Mr.  Weskett's  book  is  a  mere  collection,  in  the 
form  of  a  dictionary,  of  all  the  heads  of  maritime  law,  and  contains 
little  more  than  an  index  to  foreign  ordinances  and  usages.  The 
title,  Insurance,  in  the  collections  of  Postlethwayte  and  Beawes 
are  of  the  same  character.  The  first  treatises,  correctly  speaking, 
are  those  of  Mr.  Millar,  a  Scotch  advocate,  and  Mr.  Park,  (now 
Mr.  Justice  Park  of  the  common  pleas,)  both  published  in  the 
year  1787.  Mr.  Millar's  work  is  certainly  creditable  to  his  talents 
and  industry,  and  exhibits  considerable  research  and  habits  of  ob- 
servation. It  has  not,  however,  received  a  great  share  of  public 
favor,  nor,  as  we  believe,  reached  a  second  edition,  probably,  be- 
cause it  has  been  superseded  in  practice  by  the  very  superior 
treatise  of  his  rival,  both  in  method  and  materials.  Mr.  Park, 
indeed,  deserves  much  praise  for  the  judgment,  accuracy,  and  gen- 
eral excellence  of  his  System  of  the  Law  of  Insurance.     The  best 


PHILLIPS    ON    [NSURANCE.  817 

testimony  to  its  value  is  the  continued  approbation  of  the  profes- 
sion, which  has  already  carried  it  through  seven  large  editions.  As 
a  collection  of  authentic  cases  in  the  fullest  and  most  accurate 
form,  it  still  remains  unrivalled.  Although  it  professes  to  be  prin- 
cipally "  a  collection  of  cases  and  judicial  opinions,"  the  learned 
author  occasionally  discusses  general  principles  with  a  good  deal  of 
ability.  In  1802  Mr.  Serjeant  Marshall  published  his  Treatise  on 
the  Law  of  Insurance,  and  again,  in  1808,  published  a  second  and 
improved  edition.  His  work  professes  to  be,  not,  like  Mr.  Park's, 
a  collection  of  cases,  but  an  examination  and  collection  of  princi- 
ples. It  is  certainly  a  work  of  high  merit,  analyzing  and  criticising 
the  cases  with  great  acuteness  and  vigor ;  and  citing  the  foreign 
authorities,  with  which  the  learned  author  appears  familiar,  with  a 
creditable  liberality.  Whenever  he  ventures  to  give  his  own  com- 
ments, they  indicate  perspicacity  and  closeness  of  observation. 
But,  after  all,  the  work  seems  to  promise  more  than  it  performs. 
It  contains  little  of  doctrine  or  discussion,  beyond  what  the  English 
decisions  exact  or  furnish.  We  look  in  vain  for  any  attempt  to 
extend  the  boundaries  of  the  law  beyond  actual  adjudications,  and 
for  any  satisfactory  argument  upon  topics,  which  yet  remain  un- 
settled by  the  courts.  And  a  great  defect  in  the  work,  as  indeed 
in  all  others  —  a  defect,  which  has  been  but  imperfectly  supplied 
byr  the  late  treatise  of  Mr.  Stevens  —  is  the  want  of  a  practical  trea- 
tise upon  averages  and  the  adjustment  of  losses.  We  believe,  that 
the  learned  author  is  now  dead,  so  that  there  is  little  probability, 
that  the  work  will  be  rendered  more  complete. 

But,  whatever  may  be  the  value  of  the  English  treatises  on  insu- 
rance, it  is  most  obvious,  that  they  are  inadequate  to  supply  the 
necessities  of  the  American  bar.  They  embrace  no  cisatlantic 
decisions  ;  and  every  work  for  our  use,  which  does  not  contain  them, 
is  infected  with  a  fatal  infirmity.  From  what  has  been  already 
sted,  it  is  clear,  that  the  actual  administration  of  commercial 
jurisprudence  in  our  own  courts  must,  for  argument,  for  authority, 
and  for  practice,  be  far  more  important  to  us,  than  any  foreign 
opinions  ever  can  be.  In  respect  to  insurance,  although  the  law  in 
most  commercial  states  rests  on  the  same  basis  of  general  princi- 
ples, these  principles  admit  of  considerable  diversity  of  judgment 
in  their  application,  and  are  often  controlled  by  the  known  policy 
or  ordinances  of  each  particular  government.  This  is  so  true,  that 
there  are  probably  no  two  civilized  nations,  in  which  the  law  of 
insurance  is  exactly  the  same  in  all  its  outlines  and  details.     Al- 


318  REVIEWS. 

though  our  own  law  of  insurance  professes  to  be,  and  in  fact  is,  the 
same  in  its  general  structure  and  principles,  as  that  of  England  ; 
yet,  without  any  statutable  provisions,  we  already  find  many  con- 
clusions embodied  in  it,  which  are  at  variance  with  those  of  West- 
minster Hall.  In  some  of  these  cases  the  English  decisions  may 
be  more  just  and  satisfactory  than  our  own.  In  others  we  have  no 
hesitation  in  declaring  the  American  more  solid,  rational,  and  con- 
venient. If  it  would  not  lead  us  into  too  prolix  a  discussion,  we 
should  incline  to  enter  on  the  task  of  enumerating  the  leading 
differences,  in  order  to  enable  the  profession  to  form  an  exact  judg- 
ment on  the  subject.  But  we  must  pass  from  these  topics,  and 
hasten  to  the  close  of  an  article  already  extended  far  beyond  the 
limits,  which  we  had  originally  intended.  We  will  just  mention, 
however,  the  point,  that  the  right  of  abandonment  depends  upon 
the  state  of  the  fact  at  the  time,  when  it  is  actually  made,  and 
when  once  legally  exercised,  it  is  not  divested  by  any  subsequent 
change  of  the  facts,  as  one,  in  which  we  differ  from  English  courts ; 
and  we  are  entirely  satisfied,  that  our  rule  has  the  justest  foundation 
in  principle,  as  well  as  in  policy.  The  same  conclusion  has  been 
more  than  once  intimated  by  the  great  mind  of  Lord  Chancellor 
Eldon. 

From  what  has  been  said,  our  opinion  may  be  readily  conjec- 
tured, as  to  the  indispensable  necessity  of  a  new  treatise  on  insu- 
rance, for  the  use  of  American  lawyers ;  and  Mr.  Phillips  has  done 
a  most  acceptable  service  to  the  profession  by  the  publication  of 
that,  the  title  of  which  stands  at  the  head  of  this  article.  One  of 
two  courses  only  could  be  pursued  ;  either  to  republish  the  best 
English  work,  and  append  the  American  decisions  in  the  shape  of 
perpetual  notes,  which  would  have  formed  a  very  inconvenient  and 
bulky  commentary,  not  easily  reducible  to  specific  heads  ;  or  to 
recast  the  whole  materials,  and  produce  a  new  work,  which  should 
contain  in  one  text  the  mass  of  English  and  American  authority. 
Mr.  Phillips  has  chosen  the  latter  course,  and  in  our  opinion,  with 
great  sagacity  and  sound  judgment  ;  and  he  has  executed  his  task 
in  a  manner,  which  will  obtain  the  general  confidence  and  respect 
of  the  profession.  His  work  is  arranged  in  a  very  lucid  method, 
and  embodies  in  an  accurate  form  the  whole  system  of  the  law  of 
insurance,  as  it  is  actually  administered  in  the  courts  of  England 
and  America.  It  is  eminently  practical  and  compendious,  at  the 
same  time  that  it  is  full  of  information.  Wherever  he  has  intro- 
duced any  comments  of  his  own,  of  which  he  has  been  somewhat 


PHILLIPS    ON    INSURANCE.  319 

too  sparing,  he  has  shown  sound  sense,  and  a  liberal  juridical  spirit. 
In  respect  to  America,  his  work  will  probably  supersede  altogether 
the  use  of  Mr.  .Marshall's  ;  bul  .Mr.  Park's,  as  the  fullest  repertory 
of  all  the  cases,  will  continue  to  retain  the  public  favor.  The 
labor  of  such  a  compilation  must  unavoidably  have  been  great, 
and  required  the  most  patient  research  and  various  study.  The 
author,  as  a  scholar,  a  gentleman,  and  a  lawyer,  has  now  put  him- 
self before  the  public  and  the  profession,  for  their  patronage  of  his 
labors ;  and  we  are  satisfied,  that  he  will  not  be  disappointed  in  the 
result.  He  need  not  blush  for  his  authorship,  nor  fear  the  scrutiny 
of  dispassionate  criticism.  His  work  has  a  solid  character,  and  will 
sustain  itself  the  better,  the  more  it  is  examined. 

Of  a  work  confessedly  professional,  it  cannot  be  expected,  that 
we  should  enter  upon  a  minute  review7,  for  the  purpose  of  detecting 
slight  faults,  or  contesting  particular  opinions.  The  task  would  be 
irksome  to  ourselves,  and  so  heavy  and  technical,  as  to  afford  very 
little  satisfaction  to  our  readers.  It  is  impossible  to  include  in  a 
single  volume  the  opposite  qualities  of  brevity  and  copiousness,  a 
condensed  summary  of  principles,  and  an  elaborate  discussion  of 
the  minute  details  and  distinctions  of  cases.  Whoever  writes  a 
merely  practical  treatise,  must  leave  much  matter  worthy  of  obser- 
vation to  more  exhausting  authors.  In  this  age,  books,  to  be  read, 
must  be  succinct,  and  direct  to  their  purpose.  The  business  of 
commercial  life  will  not  stop,  while  lawyers  plunge  into  folios  of 
a  thousand  pages,  to  ascertain  a  possible  shade  of  distinction  in  the 
construction  of  contracts.  If,  therefore,  there  should  be  any  per- 
sons disposed  to  think,  that  cases  and  comments  should  have  been 
given  more  at  large,  the  true  answer  is,  that  such  was  not  Mr. 
Phillips's  plan  ;  and  that  his  work  is  to  be  judged  of,  not  by  its 
adaptation  to  other  purposes,  but  by  its  actual  execution  of  his  own 
design.  In  this  respect  it  has  our  hearty  approbation,  and  we 
sincerely  recommend  it  to  all,  who  are  interested  in  commercial 
jurisprudence,  as  merchants,  lawyers,  and  judges.  We  think,  how- 
ever, that  in  a  future  edition,  Mr.  Phillips  will  do  well  to  enrich  his 
work  with  extracts  from  Valin,  Emerigon,  and  Pothier,  upon  points, 
which  have  not  yet  received  any  adjudication,  and  occasionally  to 
introduce  some  of  their  speculative  reasonings.  We  should  be  glad, 
also,  to  have  more  full  practical  information  upon  the  adjustment  of 
averages  and  losses,  and  the  items,  which  are  to  be  admitted  or 
rejected  ;  having  had  occasion  to  know,  that  nothing  is  more  various, 


320  REVIEWS. 


uncertain,  and  anomalous,  than  the  modes  of  settling  losses  in 
different  insurance  offices.  Even  in  the  same  office,  a  departure 
from  the  principle  assumed  as  to  one  subject  of  insurance  is  not 
uncommon  as  to  another,  upon  some  fanciful  notion  of  its  inapplica- 
bility. The  form  of  Mr.  Phillips's  Index  also  might  be  advanta- 
geously changed,  so  as  to  make  it  more  easy  for  consultation,  by 
the  use  of  a  larger  type,  and  breaking  it  up  into  more  paragraphs, 
with  short  subordinate  titles. 


REVIEW 


OF  A  GENERAL  ABRIDGMENT  AND  DIGEST  OF  AMERICAN  LAW,  WITH  OCCA- 
SIONAL NOTES  AND  COMMENTS,  BY  NATHAN  DANE,  LL.  D.,  COUNSELLOR 
AT  LAW. 


[First  published  in  the  North  American  Review,  1820.] 

The  utility  of  abridgments,  in  all  departments  of  learning,  will 
scarcely  be  doubted  by  any  person,  who  is  accustomed  to  due 
reflection  on  the  subject.  The  vast  extent  and  intricacy  of  some 
branches  of  knowledge,  the  minute  distinctions  and  details  of  others, 
and  the  perpetual  accumulations  of  all,  present  obstacles  to  a 
thorough  mastery  of  them,  which  are  not  easily  overcome  by  the 
most  powerful  genius,  or  the  most  retentive  memory.  Those,  who 
are  to  learn,  must  be  assisted  by  steps,  by  general  principles,  by 
succinct  elucidation,  and  by  compendious  abstracts,  before  they  are 
able  to  engage  in  the  task  of  comprehensive  analogies  ;  and  those, 
who  are  themselves  instructed,  find  that  memory  is  often  treach- 
erous, and  that  the  constant  demand  for  knowledge  compels  them 
to  use  many  helps,  in  order  to  facilitate  their  recurrence  to  exact 
principles,  or  exact  facts.  The  details  of  a  whole  science,  at  least 
in  our  day,  are  probably  beyond  the  immediate  grasp  of  any  single 
mind,  however  gigantic.  Recollections  must  be  constantly  refreshed, 
and  the  obscure  traces  of  past  acquirements  carefully  retraced,  if 
we  aspire  to  any  thing  like  a  vigorous  command  of  that  department 
of  knowledge,  to  which  wc  are  most  devoted.  Dr.  Priestley,  whose 
various  scientific,  as  well  as  general  knowledge,  will  scarcely  be 
questioned,  has  somewhere  stated,  that  he  made  use  of  many 
mechanical  aids  in  the  course  of  his  own  studies,  some  of  which 
might  be  thought  so  humble,  as  to  excite  a  smile,  or  even  a  doubt 
of  the  abilities  of  the  author.  Indeed,  the  general  auxiliary  of 
41 


322  REVIEWS. 

most  students  used  to  be  a  common-place  book,  in  which  the  various 
readings  and  accumulations  of  their  learned  hours  were  collected, 
sometimes  with,  and  sometimes  without  method.  In  whatever  shape 
these  were  preserved,  they  had  the  good  effect  of  fixing  the  im- 
pressions of  many  important  truths,  and  of  saving  many  hours  of 
fruitless  research,  to  regain  what  was  lost  from  the  memory.  Before 
the  invention  of  printing,  this  labor  must  have  been  very  great 
among  the  learned  ;  and  it  has  been  gradually  lessening,  only  be- 
cause the  press  has,  in  the  principal  departments  of  learning,  by 
means  of  indexes,  digests,  compends,  concordances,  dictionaries, 
and  other  abridgments,  supplied  their  place,  and  brought  within  a 
reasonable  compass  the  mass  of  those  references,  which  are  most 
useful  to  the  scholar,  the  professional  gentleman,  and  the  scientific 
student.  It  is  true,  therefore,  what  of  old  was  said,  Qui  compen- 
diariam  alicujus  artis  sive  scientuc  viam  indicat,  is  gemino  bencjicio 
juvat  studiosum  ;  primum,  ut  maturius  quo  tendit  pertingat,  deinde 
ut  minori  labore  sumptuque  quod  sequitur  assequatur. 

But,  whatever  may  be  thought  of  other  cases,  it  is  certain,  that 
in  the  department  of  law  abridgments  are  indispensable.  Before 
reports  of  adjudged  cases  were  published,  no  other  adequate 
means  existed  of  acquiring  the  science  of  jurisprudence,  except  what 
were  furnished  by  a  faithful  attendance  upon  the  courts,  and  a  dili- 
gent collection  of  the  substance  of  their  decisions.  The  early 
professors  of  the  common  law  were  compelled  to  resort  to  common- 
place books,  and  personal  reports  of  cases,  falling  under  their  own 
observation.  Many  manuscripts  of  this  description  are  still  extant, 
exhibiting  a  patient  industry,  care,  and  accuracy,  worthy  of  all 
praise.  The  labor,  indeed,  of  these  venerable  jurists  almost  trans- 
cends the  belief  of  students  of  the  present  day.  They  noted 
every  case,  in  all  its  points  and  principles.  They  abstracted  from 
records,  and  general  treatises,  and  private  manuscripts,  often  obscure 
and  crabbed,  every  thing,  that  could  be  found  to  aid  them  in  study, 
or  in  practice.  They  gathered  voluminous  collections  of  special 
pleadings,  and  unusual  writs  and  judgments,  to  suit  the  exigencies 
of  their  possible  avocations  ;  and  thought  no  labor  too  great,  which 
brought  any  solid  addition  to  their  knowledge,  or  any  increased 
facilities  to  their  clients. 

The  necessity  was  the  more  pressing  in  those  days,  from  the 
subtilties,  and  quibbles,  and  scholastic  logic,  which  characterized 
every  department  of  learning.  The  law  then  dealt  with  forms, 
even  more  than  with  substances.     The  slightest  variance  from  the 


Dane's  digest  of  American  law.  323 

Registrum  Brcvium,  the  neglect  of  any  precise  technical  order, 
the  most  insignificant  error  in  words,  the  smallest  mistake  in  the 
description  of  persons  or  things,  nay,  the  omission  of  a  single  letter, 
was  perilous,  and  brought  in  its  train  an  abatement  of  the  suit,  and 
sometimes,  by  consequence,  an  extinction  of  the  remedy.  The 
strictness  observed  in  England,  in  the  present  times,  to  discourage 
the  use  of  the  writ  of  right,  affords  some  feeble  illustration  of  this 
misplaced  ingenuity,  in  hunting  up  and  sustaining  objections.  The 
curious  refinements,  the  nice  distinctions,  the  quaint  conceits,  the 
arbitrary  formularies,  and  the  stiff,  unbending  roughness  of  the  bar, 
and  bench  in  those  days,  made  every  thing  important,  from  the  first 
rudiment  of  principle,  to  the  last  ramification  of  practice.  There 
were  no  public  repositories,  in  which  principles  or  practices  could 
be  ascertained  by  a  glance  of  the  eye.  They  were  to  be  learned 
from  the  oral  explanations  of  the  ancient  sages  of  the  law,  or  the 
conversational  debates  of  the  judges,  or  the  close  lecture-rooms  of 
the  benchers,  or  the  dry  expositions  of  the  titular  readers  of  the 
Inns  of  Court. 

When  reports  began  to  be  published,  the  labor  was  not  mate- 
rially diminished.  The  decisions  were  not  uniformly  reported  at 
stated  times  ;  and  many  cases  were  not  reported  at  all.  The  early 
reports  contain  no  indexes.  The  Year-Books  have  not  a  single 
line  to  direct  the  student  to  their  contents,  and  leave  their  bulky 
and  abbreviated  text  without  title  or  comment,  so  mixed  up  in  one 
common  mass,  that  it  requires  no  small  share  of  historical  knowledge 
to  ascertain,  who,  at  any  given  period,  speak  as  judges  or  as  coun- 
sel. When  tables  of  contents  came  subsequently  into  fashion, 
they  were  so  incomplete  and  incorrect,  that  they  were  compara- 
tively of  little  assistance.  Ashe's  Repertory,  or  Table  to  the 
Year-Books,  large  as  it  seems,  in  two  ponderous  folios,  does  nothing 
more  than  put  one  upon  inquiry,  and  condescends  not  to  select  a 
single  proposition  asserted  by  the  cases.  Indeed,  the  original  in- 
dexes to  the  old  reporters  are  almost  useless,  and,  in  some  instances, 
serve  only  the  bad  purpose  of  misleading  the  inquirer,  by  holding 
out  hopes,  which  vanish,  when  he  touches  the  adjudication. 

The  practice  of  keeping  common-place  books,  which  was  thus 
begun  from  absolute  necessity  by  the  old  lawyers,  was  afterwards 
continued  from  a  sense  of  its  convenience.  Nor  was  it  generally 
discontinued  by  the  profession  until  a  late  period  ;  and  it  is  not, 
perhaps,  without  some  examples,  even  in  the  present  a^e.  In 
America,  the  ante-revolutionary  lawyers  were  in  the  habit  of  com^ 


324  REVIEWS. 

piling  manuscript  abridgments  for  their  private  use,  some  of  which 
have  reached  our  times.  They  also  left  behind  them  many  notes 
of  adjudications,  which  are  yet  to  be  found  in  the  bauds  of  the 
curious  and  the  learned.  And  probably,  in  most  of  the  states,  the 
practice  of  preserving  short  notes  of  new  cases  was  common 
among  the  leaders  at  the  bar,  until  the  legislature  provided  for  the 
regular  publication  of  reports. 

It  is  to  sources  like  those  already  adverted  to,  that  we  owe  the 
early,  and  perhaps  all  the  abridgments  hitherto  made  of  the  common 
law.  What  was  introduced  originally,  from  the  mere  scantiness  of 
public  materials,  in  process  of  time  obtained  a  continued  favor,  from 
the  unwieldy  bulk  of  adjudications.  Lord  Coke  poured  the  con- 
tents of  his  common-place  book  into  his  Commentary  upon  Little- 
ton, and  his  superabundant  Reports.  Plowden  may  well  be 
suspected  of  the  same  overlearned  zeal ;  and  Lord  Hale  has  at- 
tested his  own  unwearied  diligence  and  antiquarian  researches,  by 
manuscript  collections,  which  yet  surprise  us  by  their  variety  and 
comprehensiveness. 

The  earliest  printed  abridgment  of  the  law  is  that  of  Statham 
(Nicholas),  who  was  appointed  a  baron  of  the  exchequer  in  the 
eighth  year  of  the  reign  of  Edward  the  Fourth  (1468).  It  is  a 
very  curious  book,  printed,  as  it  would  seem,  before  title-pages 
were  in  use,  for  it  is  without  any  title-page,  or  imprint,  or  date  ; 
and  the  only  notice  we  have  of  the  printer  is  the  following  brief 
and  modest  remark,  at  the  end  of  a  short  table  of  contents  :  "  Per 
me,  R.  Pynson."  It  has  been  conjectured  from  the  type,  that  it 
was  printed  at  Rouen,  by  William  Le  Tailleur,  who  printed  Little- 
ton's Tenures,  for  Pynson.  The  latter  was  bred  in  the  service  of 
Caxton,  the  first  printer  with  metal  types  in  England,  and  he  suc- 
ceeded his  master  in  the  business.  Statham's  Abridgment  was 
published  between  the  years  1470  and  1490,  and  is  a  remarkable 
specimen  of  the  typography  of  the  age.  It  shows,  that  there  has 
been  little  substantial  improvement  in  the  art,  during  the  three  last 
centuries.  The  art  appears,  indeed,  to  have  reached  perfection 
within  the  first  half  century  after  its  invention.  The  copy  now 
before  us  seems  to  have  formerly  belonged  to  Sir  Heneage  Finch, 
afterwards  the  celebrated  Earl  of  Nottingham.  The  paper  is  of  a 
very  firm,  silky  texture,  forming  a  strong  contrast  to  the  sleazy  linen 
and  cotton  of  our  day  ;  the  ink  is  of  a  bright  jetty  and  unfaded 
black  ;  the  type,  though  small  and  partly  composed  of  abbreviated 
characters,   has  a   sharp  and   distinct  face  ;    and   the   mechanical 


Dane's  digest  of  American  law.  325 

execution  is  so  exact,  that  scarcely  a  letter  exhibits  a  blur,  and  the 
surface  of  every  page  presents  a  uniform  appearance,  putting  to 
shame  many  of  the  standard  volumes  of  our  times.  The  work 
itself  contains,  under  appropriate  heads,  brief  abstracts  of  the  cases 
in  the  Year-Books,  to  the  end  of  the  reign  of  Henry  the  Sixth, 
as  well  as  some  cases  not  elsewhere  to  be  found.  It  has  now  very 
little  value,  except  occasionally  to  verify  a  quotation,  or  to  gratify 
the  curiosity  of  a  professed  antiquary. 

The  next  abridgment,  in  the  order  of  time,  is  that  of  Sir  An- 
thony Fitzherbert,  first  printed  by  Pynson  about  1516,  and  after- 
wards reprinted  in  1565  and  1577.  The  edition  of  1565  is  far 
the  best,  for  size  of  type  and  general  accuracy.  Besides  many 
cases  not  reported  at  large,  it  contains  an  abstract  of  all  the  cases 
in  the  Year-Books,  down  to  the  twenty-first  year  of  the  reign  of 
Henry  the  Seventh.  It  has  always  been  deemed  of  very  high 
authority,  where  the  author  states  cases  solely  on  his  own  respon- 
sibility. The  marginal  titles  and  numbers,  in  the  common  editions 
of  the  Year-Books,  refer  to  the  titles  and  numbers  of  this  abridg- 
ment. The  learned  author  died  in  J  538,  leaving  behind  him  the 
reputation  of  a  very  laborious  and  upright  judge. 

At  the  distance  of  half  a  century  afterwards,  followed  the 
Abridgment  of  Sir  Robert  Brooke,  of  which  there  have  been 
several  reprints ;  but  the  best  is  that  on  royal  paper  by  Tottell, 
in  1573.  It  contains  the  substance  of  Fitzherbert,  together  with 
a  collection  of  the  later  authorities,  some  of  which  are  nowhere 
else  extant. 

The  character  of  the  Abridgments  of  Fitzherbert  and  Brooke 
may  be  summed  up  in  a  few  words.  They  are  mere  indexes, 
under  general  heads,  of  the  principal  adjudged  cases  up  to  their 
own  times,  in  which  the  points  are  accurately  stated,  but  without 
any  attention  to  order,  or  any  attempt  at  classification.  As  reposi- 
tories of  the  old  law,  they  now  maintain  a  very  considerable  value, 
and  may  be  consulted  with  advantage.  Whoever  examines  them 
(for  a  thorough  perusal  of  them  will  be  a  mere  waste  of  time)  will 
probably  feel  inclined,  when  he  can,  to  ascend  to  the  original 
sources ;  but  if  these  should  not  be  within  his  reach,  he  may  rely 
with  confidence,  that  these  learned  judges  have  not  indulged  them- 
selves in  a  careless  transcription,  or  a  loose  statement,  of  the  law. 
In  our  own  practice  we  have  frequently  found  them  the  safest 
guides  to  the  old  law,  and  particularly  to  the  contents  of  the  Year- 
Books.     At  the  times,  when  these  Abridgments  were  originally 


326  REVIEWS. 

published,  they  must  have  been  very  acceptable  presents  to  the 
profession.  But  many  of  the  titles  are  now  obsolete ;  and  the 
works  lie  on  the  dusty  shelves  of  our  libraries,  rarely  disturbed, 
except  upon  some  extraordinary  inquiry,  touching  the  feudal  ten- 
ures, or  the  doctrine  of  seizin.  The  modest  motto  prefixed  to 
both  of  them  deserves  to  be  remembered  :  .V  moy  reproves  sauns 
cause,  car  mon  entcnt  est  de  bon  amour. 

We  pass  over,  without  observation,  Hughes's  Abridgment, 
printed  in  1660,  because  it  embraces  but  a  short  period,  and  is  a 
mere  supplement  to  the  earlier  works  ;  and  also  Sheppard's 
Abridgment,  printed  in  1675,  because,  though  not  disreputable  in 
its  execution,  it  scarcely  struggled  into  existence  against  the  supe- 
rior work  of  Lord  Chief  Justice  Rolle,  which  was  published  under 
the  auspices  of  Sir  Matthew  Hale,  in  1668.  Lord  Hale  contribu- 
ted to  it  a  very  able  and  learned  preface,  in  which  he  bestows  just 
commendation  on  its  execution  ;  and  of  the  author  he  says,  "  He 
was  a  man  of  very  great  natural  abilities,  of  a  ready  and  clear 
understanding,  strong  memory,  sound,  deliberate,  and  steady  judg- 
ment ;  of  a  fixed  attention  of  mind  to  all  business,  that  came 
before  him;  of  great  freedom  from  passions  and  perturbations,  of 
preat  temperance  and  moderation,  of  a  strong  and  healthy  consti- 
tution of  body,  which  rendered  him  fit  for  study  and  business,  and 
indefatigable  in  it."  The  Abridgment  itself  is  a  posthumous  work, 
intended  by  the  author  for  his  own  private  use,  and  not  for  the 
public  ;  and  Lord  Hale  says,  "  Though  it  is  of  excellent  use  and 
worth,  yet  it  comes  far  short  of  the  worth  and  abilities  of  him,  that 
compiled  it,  and  therefore  is  an  unequal  monument  of  him." 
The  chief  advantage,  that  it  possesses  over  the  earlier  compilations, 
is  in  a  more  scientific  arrangement  of  the  materials,  and  a  greater 
subdivision  of  the  general  heads,  so  as  to  bring  together  matters  of 
the  same  nature  or  relative  to  the  same  branch,  instead  of  heaping 
them  up  into  one  undistinguishing  mass.  Mr.  Hargrave,  in  his 
edition  of  Coke  on  Littleton  (note  1  to  page  9),  speaks  of  it,  as  a 
"  work  most  excellent  in  its  kind  ;  and,  in  point  of  method,  suc- 
cinctness, legal  precision,  and  many  other  respects,  fit  to  be  pro- 
posed as  an  example  for  other  abridgments  of  law."  In  prac- 
tice, however,  it  has  been  in  a  great  measure  superseded  by  the 
later  works,  and  is  resorted  to,  principally,  to  verify  quotations, 
when  the  original  authorities  are  not  to  be  found  reported  at  large, 
or  when  Lord  Rolle  has  stated  circumstances,  which  are  omitted 
by  other  authors. 


Dane's  digest  of  American  law.  327 

D'Anvers's  Abridgment,  printed  early  in  the  eighteenth  century, 
which  Mr.  Viner  informs  us  was  thirty-two  years  in  passing  through 
the  press,*  is  a  mere  translation  of  Kolle,  with  the  addition  of  more 
modern  cases,  and  is  incomplete,  extending  only  to  the  title  "  Ex- 
tinguishment." Nelson's  is  chiefly  borrowed  from  Hughes  ;  and 
though  the  author  was  a  very  harsh  and  unsparing  critic  on  the 
labors  of  others,  his  own  have  a  general  character  of  incorrectness 
stamped  upon  them,  and  have  fallen  into  utter  neglect. 

Bacon's  Abridgment,  so  well  known  to  the  profession,  was  first 
published  in  173C,  and  has  passed  through  six  large  editions.  The 
contents  of  the  work  owe  very  little  to  the  nominal  author,  (Mat- 
thew Bacon,  Esquire,  of  the  Middle  Temple,)  and  were  chiefly 
extracted  from  the  manuscript  collections  of  Lord  Chief  Baron 
Gilbert.  Mr.  Gwillim  has  well  observed,  that  "  It  was  the  hard 
fate  of  his  excellent  writings  to  lose  their  author  before  they  had 
received  his  last  corrections  and  improvements,  and  in  that  unfin- 
ished state,  to  be  thrust  into  the  world  without  even  the  common 
care  of  an  ordinary  editor.  Those  invaluable  tracts  were,  for  the 
most  part,  published,  not  only  with  their  original  imperfections, 
without  any  attempt  to  supply  their  defects,  or  explain,  or  correct 
what  seemed  in  them  perplexed  or  erroneous,  but  with  all  the 
improprieties  and  inaccuracies,  which  the  ignorance  and  neglect  of 
the  amanuenses,  whom  the  author's  infirmities  compelled  him  to 
employ,  could  accumulate  upon  them."  Mr.  Bacon  deserves  very 
little  credit,  in  any  view  ;  because  he  seems  to  have  been  willing  to 
appropriate  to  himself  the  labors  of  another,  without  due  acknowl- 
edgment, and  to  have  employed  no  diligence  in  correcting  errors, 
and  no  learning  in  supplying  deficiencies.  He  died  before  the 
work  was  completed  ;  and  the  remainder,  from  the  title,  "  Sheriff," 
was  furnished  by  Mr.  Sergeant  Sayer,  and  Mr.  Ruffhead. 

Of  this  collection,  which  has  been  almost  for  a  century  before 
the  public,  it  seems  scarcely  necessary,  at  the  present  time,  to 
express  any  opinion.  It  consists  of  a  series  of  tracts,  or  disserta- 
tions, upon  various  topics  of  the  law,  generally  illustrated  by  adju- 
dications, and,  though  incomplete,  exhibiting  a  rare  union  of  sagacity 
and  industry.  As  a  textbook  for  students,  it  has  long  maintained 
an  unrivalled  reputation  ;  and,  as  the  expositions  of  a  very  able 
and  learned  judge  upon  a  large  survey  of  the  law,  dealing  with  its 
history  and  its  reasons,  it  must  for  ever  hold  a  high  rank  among  the 

*  Preface  to  the  eighteenth  volume  of  his  Abridgment. 


328  REVIEWS. 

treasures  of  the  profession.  Mr.  Gwillim's  edition  is  far  the  best, 
which  has  appeared  in  England,  and  is  entitled  to  much  praise 
for  the  manner  in  which  the  duties  of  the  editor  have  been  per- 
formed. This  edition  has  been  republished  in  America,  under  the 
superintendence  of  Bird  Wilson,  Esquire,  who  has  enriched  it  with 
many  valuable  additions.  Still  it  must  be  admitted,  that  there  is 
great  awkwardness  and  inconvenience  in  ingrafting  such  an  abun- 
dance of  marginal  notes  upon  the  original  text,  threatening,  in 
every  new  edition,  to  overlay,  if  they  do  not  bury  it  beneath 
their  weight. 

Mr.  Viner's  Abridgment  was  published  between  the  years  1741 
and  1751,  and  extending,  as  it  does,  over  the  space  of  twenty-four 
folio  volumes,  may  be  thought  by  some  not  to  have  a  very  apt 
title.  The  learned  author  passed  a  whole  life  in  compiling  the 
work,  and  superintending  the  printing  of  it,  which,  by  the  consent 
of  the  law  patentees,  was  done  at  his  own  house,  in  Aldershot  in 
Hampshire.  The  basis  of  the  work  is  Rolle's  Abridgment,  with 
the  addition  of  all  the  materials,  which  had  accumulated  in  the 
intermediate  period.  In  the  preface,  (which  appears  in  the  thir- 
teenth volume,*  occasioned  by  the  author's  having  begun  with  the 
title  "  Factor,"  where  D'Anvers  ended  his  Abridgment,)  he  states, 
that  he  commenced  the  undertaking  with  the  eighteenth  century, 
and  it  was,  of  course,  for  nearly  fifty  years  under  his  revising  hand. 
Mr.  Hargrave  (Co.  Lilt.  9.  a.  note  3.)  calls  it  an  immense  body  of 
law  and  equity,  which,  notwithstanding  all  its  defects  and  inaccu- 
racies, must  be  allowed  to  be  a  necessary  part  of  every  lawyer's 
library.  He  adds,  that  it  is  a  most  useful  compilation,  and  would 
have  been  infinitely  more  so,  if  the  author  had  been  less  singular 
and  more  nice  in  his  arrangement  and  method,  and  more  studious 
in  avoiding  repetitions.  This  praise,  qualified  as  it  is,  seems  to  us 
rather  to  go  beyond,  than  to  fall  short  of  the  real  merits  of  the 
work.  It  is  a  cumbrous  compilation,  by  no  means  accurate  or 
complete  in  its  citations,  and  difficult  to  use,  from  the  irregularity 
with  which  the  matter  is  distributed,  and  from  the  inadequacy, 
and  sometim<  s  the  inaptness,  of  the  subdivisions.  Indeed,  every 
thing  appears  to  have  been  thrown  into  it,  without  any  successful 
attempt  at  method  or  exactness.  Almost  every  thing  valuable  in 
the  older  abridgments  is,  indeed,  to  lie  found  in  it ;  but  some- 
times so   ill   arranged,   that  the  search   is  almost  as  troublesome, 

*  There  is  a  second  preface  in  the  eighteenth  volume. 


dane's  digest  of  American  law.  329 

as  it  would  be  to  run  over  the  whole  title  in  Fitzherbert  or 
Brooke.  The  author  has  observed,  in  the  preface  to  his  thir- 
teenth volume,  that  "  The  study  of  the  law  is  a  very  long  jour- 
ney, and  the  roads  not  the  plainest  ;  in  which  they  [abridgments] 
may  serve  as  posts  and  Mercuries  to  direct  the  students  in 
their  way,  but  ought  not  by  any  means  to  be  considered  as  their 
journey's  end,  or  place  of  their  last  resort  and  residence." 
What  a  pity,  that  the  author  had  not  more  diligently  followed  the 
directions,  which  he  seems  to  approve  by  the  above  allusion  !  He 
has,  by  no  means,  made  the  roads  very  plain  or  smooth  ;  and  the 
signposts,  which  he  has  put  up,  do  not  always  indicate  either  the 
truest  way,  or  the  shortest  distance,  to  the  striking  point  of  the 
traveller's  journey.  Nor  has  he  the  satisfactory  apology,  Dum 
brevis  esse  laboro,  obscurus  Jio  ;  for  his  work  is  both  long  and 
confused.  It  may,  and,  indeed,  ought,  to  constitute  a  part  of  every 
law  library,  which  aims  to  be  tolerably  complete ;  for  it  embraces 
the  body  of  the  law  antecedent  to  the  reign  of  George  the  Third. 
Its  principal  merit  is  its  extent ;  and  though  in  some  parts  it  is 
redundant,  in  others  defective,  and  in  all  irregular,  it  is  a  vast 
index  of  the  law,  which  time  and  patience  can  master  ;  and  it 
often  rewards  the  labor,  when  all  other  resources  have  failed  the 
diligent  searcher  for  authorities. 

It  is  impossible,  however,  not  to  feel,  that  we  owe  to  this  work 
a  deep  debt  of  gratitude,  which  should  disarm  criticism,  and 
almost  extinguish  every  recollection  of  its  infirmities.  To  the 
establishment  of  the  Vinerian  professorship,  at  Oxford  University, 
we  are  indebted  for  one  of  the  most  elegant  and  classical  works  in 
our  language,  "  The  Commentaries  on  the  Laws  of  England,"  by 
Sir  William  Blackstone.  From  a  zeal  for  the  study  of  the  law, 
for  "  the  benefit  of  posterity,  and  the  perpetual  service  of  his 
country,"  Mr.  Viner  devoted  his  property,  and  the  proceeds  of  the 
sale  of  his  great  Abridgment,  to  the  noble  purpose  of  founding  a 
professorship  of  the  common  law.  And  we  are  informed,  that  the 
fund  proved  sufficiently  productive  to  enable  the  University,  also, 
to  establish  some  fellowships  and  scholarships  for  the  study  of  the 
law  there.* 

A  work  of  a  very  different  character,  and  almost  perfect  in  its 
kind,  is  the  Digest  of  Lord  Chief  Baron  Corny ns.  Though  a 
posthumous  publication,  it  has   been  justly  observed,  that,   unlike 

*  1  Blackstone's  Commentaries,  28. 
42 


330  REVIEWS. 

most  publications  of  that  nature,  it  was  left  by  its  learned  author 
in  a  state  very  fit  to  meet  the  eye  of  the  public.  Lord  Chief 
Baron  Comyns  died  sometime  between  the  years  1740  and  1743; 
the  exact  period,  Mr.  Rose,  his  late  editor,  does  not  seem  to  have 
been  able  to  ascertain.  It  is  a  melancholy  fact,  that  very  few 
particulars  of  the  lives  even  of  the  most  eminent  lawyers  reach 
posterity.  Great  as  their  fame  may  be,  and  extensive  as  may  be 
their  professional  labors,  while  living,  they  rarely  leave  a  perma- 
nent impression  upon  the  public  mind  ;  and  alter  the  lapse  of  a 
few  years,  the  most  diligent  search  enables  us  to  collect  little  more 
than  the  facts  of  their  birth,  death,  and  parentage.  This  distin- 
guished judge  is  a  very  striking  illustration  of  the  remark.  It  was 
said  by  the  late  Lord  Kenyon,  that  "  Comyns's  opinion  alone  is  of 
great  authority,  since  he  was  considered  by  his  contemporaries  as 
the  most  able  lawyer  in  Westminster  Hall."  (3  T.  R.  64.) 
There  is  no  reason  to  doubt  the  truth  of  this  assertion ;  and  yet,  of 
such  a  man,  nothing  more  can  now  be  gathered,  than  a  few  short 
dates  of  his  appointments  to  public  stations.  Mr.  Rose  says,  "  It 
was  the  editor's  wish,  for  the  purpose  of  satisfying  a  laudable  curi- 
osity in  respect  to  so  eminent  a  man,  to  have  stated  some  particu- 
lars of  the  life  of  Sir  John  Comyns  ;  but,  after  several  inquiries, 
the  following  dates  are  all  he  has  been  able  to  collect."  He  then 
introduces  the  dates  of  his  appointment  as  a  Baron  of  the  Ex- 
chequer, and  a  Judge  of  the  Common  Pleas. 

Of  the  plan  of  this  incomparable  Digest,  it  is  difficult  to  speak 
in  terms,  which  will  do  it  justice,  without  seeming  to  be  extrava- 
gant. Mr.  Hargrave  (Co.  Litt.  17.  note  96.)  says,  "  The  whole 
of  Lord  Chief  Baron  Comyns's  work  is  equally  remarkable  for 
its  great  variety  of  matter,  its  compendious  and  accurate  expres- 
sion, and  the  excellence  of  its  methodical  distribution."  Our  own 
opinion  is,  that,  for  the  purpose  it  proposes  to  accomplish,  no  plan 
could  be  more  judicious,  and  no  execution  more  singularly  suc- 
cessful. It  does  not,  like  Bacon's  Abridgment,  affect  to  enter 
into  disquisitions  upon  the  various  doctrines  of  the  law,  or  to  ex- 
plain the  reasons,  on  which  it  is  built.  But,  as  the  preface  to  the 
first  edition  states,  "  The  general  plan  of  this  Digest  is,  that  the 
author  lays  down  principles  or  positions  of  law,  and  illustrates  them 
by  instances,  which  he  supports  by  authorities  ;  and  these  are 
trenched  out  and  divided  into  consequential  positions  or  points  of 
doctrine,  illustrated  and  supported  in  the  same  manner.  By  this 
means,  each  head  or  title  exhibits  a  progressive  argument  upon  the 


Dane's  digest  of  American  law.  331 

subject,  and  one  paragraph,  &tc.  follows  another  in  a  natural  and 
successful  order,  till  the  subject  is  exhausted."  It  is  a  curious 
fact,  that  the  original  text  was  composed  in  Law  French,  which, 
it  is  conjectured,  the  author  chose  on  account  of  its  apt  expression 
and  singular  brevity. 

The  editors  of  the  first  edition  translated  the  whole  work  into 
English,  which  was,  of  itself,  a  prodigious  undertaking,  and  they 
declare,  that  "  The  translation  of  the  book  has  been  carefully  com- 
pared with,  and  corrected  by,  the  original,  and  with  very  great 
labor  has  also  been  compared  with,  and  corrected  by,  the  several 
books  cited"  Who  the  gentlemen  were,  to  whose  patient  industry 
and  accuracy  we  are  indebted  for  the  publication  of  so  choice  a 
work,  we  have  never  been  able  to  ascertain.  They  have  modestly 
withdrawn  their  names  from  the  titlepage  and  preface,  leaving  the 
latter  to  speak  the  extent  and  credit  of  their  labors.  We  regret 
this  concealment ;  for  never  did  a  posthumous  work  fall  into  more 
able  hands,  and  never  was  the  duty  of  an  editor  more  faithfully 
discharged.  It  is  this  consideration,  which  gives  to  the  original 
edition  so  very  distinguished  a  value,  even  in  our  days.  It  was 
published  between  the  years  1762  and  1767,  in  five  folio  volumes, 
on  excellent  paper,  with  a  large  type,  and  it  stands  unrivalled  for 
the  accuracy  and  beauty,  with  which  it  came  from  the  press.  In 
1776,  a  supplemental  folio  volume  was  added,  containing  a  digest 
of  the  recent  cases,  upon  the  same  plan  as  the  original  work. 

Of  the  later  editions,  in  octavo,  we  can  say  little  by  way  of 
commendation.  They  have  the  gross  fault  of  a  total  departure 
from  the  style,  brevity,  accuracy,  and  simplicity  of  Comyns  ;  a 
departure,  which  is  utterly  without  apology  ;  as  it  exhibits,  on  the 
part  of  the  editor,  either  an  incapacity  for  the  task,  or  an  indiffer- 
ence to  the  manner  of  executing  it.  If,  indeed,  other  authors  have 
suffered  from  the  posthumous  publication  of  their  unfinished  works, 
it  has  been  the  hard  fate  of  Comyns  to  have  the  symmetry  and 
excellence  of  his  work  essentially  impaired  by  the  unmerciful 
interpolations  of  his  later  editors.  Without  any  regard  to  the 
dependencies  of  the  original  text,  or  the  sequence  of  principles 
and  illustrations,  they  have  thrust  in,  between  the  different  para- 
graphs, their  new  matter,  in  a  crude  state,  and  often  so  little  sifted, 
that  it  is  a  mere  copy  of  the  marginal  abstracts  of  the  later  reports. 
The  consequence  is,  that  passages,  which  are  connected  in  sense 
in  the  original  text,  are  often  separated  by  these  misshapen  ad- 
juncts ;    and    sometimes   a   half   page  is   to  be   run  over  by  the 


332  REVIEWS. 

reader,  before  he  can  gather  up  the  disjecta  membra,  the  scattered 
fragments,  of  the  author. 

In  the  art  of  bookmaking,  there  is  scarcely  any  thing  more  rep- 
rehensible than  this  practice,  by  which  an  author,  singularly  clear, 
exact,  and  methodical,  is  presented  in  the  habiliments  of  a  slovenly 
common-place  man.  The  only  rational  course  to  be  pursued,  in 
any  new  edition  of  Comyns,  would  be  to  leave  the  text  untouched, 
with  all  the  authority  belonging  to  it  from  the  author's  venerable 
character  ;  and,  by  supplementary  volumes,  drawn  up  in  the  same 
method,  to  add  the  new  matter,  which  has  accumulated  from  the 
litigation  of  later  times.  The  good  example  of  the  editors  of  the 
Supplement,  in  1776,  seems,  however,  to  have  suited  ill  with  the 
notions  of  our  age  ;  and,  from  the  rage  for  innovation,  or  from  the 
pitiful  prevalence  of  a  bookselling  interest,  every  successive  edition, 
instead  of  being  of  a  higher  value,  has  constantly  diminished  the 
real  utility  of  the  work.  Mr.  Kyd's  edition  has  the  negative  merit 
of  having  done  but  little  injury  ;  Mr.  Rose's,  in  1800,  has  inter- 
woven a  miserable  patchwork  ;  and  Mr.  Hammond's,  in  1824,  has 
even  less  merit,  containing  the  substance  of  his  indexes  to  the 
common  lawr  and  chancery  reports,  thrown  together  with  a  strange 
neglect  of  the  symmetry  of  the  original  work.  Indeed,  this  last 
edition  deserves  the  severe  rebuke  of  the  profession,  as  its  main 
object  seems  to  be  to  swell  the  work  to  ten  ponderous  volumes. 
If  the  new  matter  had  been  properly  abridged,  and  reduced  to 
simple  principles  and  brief  illustrations,  in  the  manner  of  Comyns, 
it  might  easily  have  been  compressed  into  two  supplementary  vol- 
umes. But  the  last  Supplement  equals  the  original  in  size,  and 
wants  every  excellence,  that  characterizes  it. 

We  hope  to  live  long  enough  to  see  Comyns  rescued  from  the 
hands  of  such  editors,  and  restored  to  his  just  value,  by  an  edition 
worthy  of  his  labors.  We  are  confident,  that  the  task  of  collecting 
and  digesting  the  modern  matter,  however  operose  it  may  seem,  is 
within  the  power  of  any  one  learned  and  diligent  lawyer,  and  that 
its  accomplishment  would  receive  an  ample  reward  from  the  pro- 
fession. Such  an  achievement  would  lay  the  foundation  of  a  most 
honorable  fame.  As  the  case  now  is,  he  is  the  most  fortunate 
jurist,  who  possesses  the  earliest  edition  of  the  work.  We  have 
been  more  emphatic  in  our  remarks  on  this  subject,  because  we 
perceive  an  increasing  propensity,  in  our  own  country,  to  load  and 
overload  new  editions  of  professional  works  with  notes  of  little 
intrinsic  value,  or,  at  most,  with  notes,  whose   value   is   materially 


DANE  S    DIGEST    OF    AMERICAN     LAW.  333 

diminished  by  the  loose  and  unskilful  manner,  in  which  they  are 
introduced.  There  are,  however,  some  exceptions  to  this  remark; 
and  none  are  entitled  to  more  praise  than  the  learned  comments  of 
Mr.  Metcalf. 

But  we  hasten  from  this  digression  to  resume  the  subject,  to 
which  the  work,  named  at  the  head  of  this  article,  immediately 
conducts  us.  Upon  the  appearance  of  a  new  abridgment  of  the 
law,  the  question  naturally  occurs,  whether  it  be  necessary  ;  and,  if 
necessary,  what  is  the  best  plan,  with  a  view  to  comprehensiveness 
and  convenience,  on  which  it  can  be  formed  ? 

In  respect  to  England,  there  may,  perhaps,  be  some  doubt, 
whether  such  a  work  would  be  of  any  extensive  utility.  A  con- 
tinuation of  Comyns's  Digest  seems  all  that  is  necessary  for  law- 
yers of  advanced  standing  ;  and  Bacon's  Abridgment,  however 
imperfect,  is  perhaps  sufficient,  with  Blackstone's  Commentaries 
and  Cruise's  Digest,  as  a  general  outline  for  students.  Indeed,  most 
of  the  branches  of  law,  of  great  practical  importance,  have  in 
modern  times  been  discussed  in  independent  treatises  with  much 
ability,  and  sometimes  in  so  masterly  a  manner,  as  to  exhaust  the 
subject.  What  could  be  added  to  Feame's  Essay  on  Contingent 
Remainders  and  Executory  Devises  ?  But  we  think  the  subject 
admits  of  a  very  different  consideration,  in  relation  to  America. 
The  learned  author  of  the  "  General  Abridgment  and  Digest  of 
American  Law  "  has  stated  the  reasoning  in  favor  of  it  with  so 
much  force  and  correctness,  that  we  transcribe  his  remarks  in  the 
Introduction  to  his  work,  rather  than  hazard  our  own. 

"  At  the  close  of  the  American  revolutionary  war,  when  the 
United  States  became  an  independent  nation,  it  was  very  mate- 
rial to  inquire  and  to  know  what  was  law  in  them,  collectively  and 
individually  ;  also  to  examine,  trace,  and  ascertain  what  were  the 
political  principles,  on  which  their  system  was  founded  ;  and  their 
moral  character,  so  essential  to  be  attended  to  in  the  support  and 
administration  of  this  system ;  especially  in  selecting,  from  the 
English  laws  in  force  in  a  monarchy  once  feudal,  those  parts  of 
them  adopted  here,  and  remaining  in  force  in  our  republic.  With 
such  impressions,  the  author  early  turned  his  attention  to  these 
subjects,  and  in  good  earnest  engaged  in  collecting  materials  upon 
them ;  and  the  more  readily,  as  such  a  pursuit  perfectly  accorded 
with  his  professional  and  political  employments,  in  which  he  en- 
gaged in  the  spring  of  1782.  He  early  found,  there  was  in  the 
United  States   nothing  like  one  collected  body  of  American  law. 


334  REVIEWS. 

or  one  collected  system  of  American  politics  ;  but  all  was  found  in 
scattered  fragments.  Scarcely  any  native  American  law  was  in 
print,  but  the  colony  statutes,  charters,  and  some  of  the  constitu- 
tions. No  judicial  decisions,  made  in  America,  of  any  importance, 
had  been  published,  and  but  very  few  forms.  The  laws,  enacted 
here,  were  found  separately  published  in  many  states,  in  colony, 
province,  and  state  statutes.  Our  law  labored  under  another 
material  disadvantage  ;  most  of  it  was  found  only  in  English  books. 
These  were  written  and  published  to  be  used  in  England,  not  in 
America  ;  a  large  part  of  which  was  of  no  real  use  here. 

"No  measures  had  ever  been  taken  to  ascertain,  with  any  ac- 
curacy, what  part  of  English  law  our  ancestors  had  adopted  in  the 
colonies  or  provinces.  The  result  was,  our  ablest  lawyers  were 
often  unable  to  decide  what  parts  of  the  English  laws  were  in  use 
here ;  and  our  students  at  law  often  studied  as  laboriously  the  use- 
less, as  the  useful  parts  of  those  laws.  No  one  had  attempted  to 
embody  our  laws  or  political  principles,  dispersed  in  numerous  local 
charters,  constitutions,  statutes,  and  also  English  books  ;  many  of 
which  laws  and  principles  were  to  be  traced  to  the  free  parts  of  the 
British  system,  and  even  to  the  ancient  Germans,  in  several  cases  ; 
and,  in  some,  to  the  Hebrews,  several  of  whose  laws  some  of  our 
ancestors  early  adopted  in  America. 

"  In  this  state  of  things,  a  very  important  object  naturally  pre- 
sented itself  to  one,  who  for  several  years  had  been  in  a  situation 
highly  to  appreciate  American  principles,  especially  those  of  the 
American  Revolution  ;  which  was,  a  collected  body  of  American 
law,  formed  with  a  constant  reference  to  those  principles,  and  to 
our  character  and  situation.  Forty  years  ago,  the  materials  for 
such  a  work  were  but  few,  in  comparison  with  what  they  now  are  ; 
and  then  it  was  very  useful,  and  even  necessary,  to  collect  them 
for  the  lawyer's  private  use  ;  and  to  such  purpose  was  the  under- 
taking commenced,  and  pursued  many  years.  The  title,  "  A  Gen- 
eral Abridgment  and  Digest  of  American  Law,  with  occasional 
Notes  and  Comments,"  is  intended  to  give  a  clear  and  concise  view 
of  the  nature  of  the  work.  Formerly  the  word,  Digest,  in  law- 
books, meant  much  more  than  an  alphabetical  arrangement  of 
marginal  notes,  or  of  several  indexes.  But,  as  this  seems  to  be 
nearly  its  modern  meaning,  it  applies  but  to  an  inconsiderable  part 
of  this  work,  the  principal  parts  of  which  are  described  by  the 
other  words  in  the  title,  to  wit,  "  Abridgment,  Notes,  and  Com- 
ments."    The  first  object  has  been  to  abridge  and  compress  cases 


dane's  digest  of  American  law.  335 

within  narrow  limits,  but  not  so  as  to  lose  or  obscure  the  law, 
decided  or  settled  in  them.  Next,  on  proper  occasions,  by  remarks, 
notes,  and  comments,  to  examine  and  explain  a  few  obscure  points 
of  law,  and  sometimes  to  show,  the  law  is  not,  as  it  has  been  in 
some  decisions  stated  to  be. 

"  The  work  is  calculated  to  consist  of  eight  royal  octavo  vol- 
umes, of  about  seven  hundred  pages  each,  to  be  purely  American, 
and,  among  other  things,  to  supply  the  place  generally  of  the 
English  abridgments,  and  digests  now  read,  especially  by  students, 
very  disadvantageously,  because,  in  many  respects,  inapplicable  to 
our  practice.  As  every  lawyer  of  experience  must  have  found  a 
common  life  too  short,  to  be  well  read  in  the  immense  mass  of  law 
and  equity,  federal,  state,  and  territorial,  really  applicable  to  our 
affairs,  it  must  be,  in  some  degree,  a  waste  of  time,  especially  for 
students  and  some  others,  to  spend  a  large  part  of  their  time  in 
reading  English  law  as  to  tithes,  forest,  game  prerogatives,  ancient 
demesne,  advowsons,  boroughs,  English  copyhold  estates,  many 
parts  of  feudal  tenures,  most  kinds  of  English  courts  and  customs, 
modes  of  punishments  and  forfeitures,  laws  as  to  English  religion, 
privileges,  revenue,  stamps,  modes  of  conveying  and  assuring  prop- 
erty, and  a  vast  many  other  matters  peculiar  to  England.  In  fact, 
near  half  the  English  and  Irish  law,  we  buy  at  a  heavy  expense,  and 
read  often  to  the  exclusion  of  reading  our  own  laws,  so  useful,  is  as 
inapplicable  to  our  concerns  as  the  laws  of  Germany  or  Spain  ;  and 
more  so  than  the  civil  code  of  France,  since  it  is  adopted  in  sub- 
stance by  Louisiana,  one  of  our  states."     Introd.  pp.  3-5. 

Now  we  entirely  agree  with  the  author  in  his  conclusion,  that  an 
American  abridgment  is  indispensable  both  for  lawyers  and  students, 
at  the  present  day.  We  can  hardly  conceive  of  any  thing  more 
preposterous,  than  to  ingraft  on  such  a  work  those  titles  of  the 
English  law,  which  have  nothing  correspondent  with  them  in  our 
country,  to  which  they  can  be  applied.  It  is  true,  that  decisions 
in  those  branches  of  English  law  may  sometimes  furnish  an  illus- 
tration of  a  doubtful  point,  or  an  analogy  to  direct  our  researches. 
But  these  occasions  must  be  of  rare  occurrence  ;  and  the  same 
inducements  might  be  as  well  urged  in  favor  of  the  incorporation 
of  the  law  of  other  foreign  countries.  Abridgments  can  embrace 
only  those  portions  of  law,  which  are  of  most  frequent  and  general 
use.  English  sources  will  always  be  open  to  the  curious,  who 
desire  to  explore  the  more  obscure  doctrines  ;  and  the  practising 
lawyer  must,  in  extraordinary  cases,  task  his  diligence  to  master 


336  REVIEWS. 

what  is  unknown,  and  to  bring  to  light  what  is  buried  in  dark  and 
remote  antiquity. 

In  regard  to  the  plan  most  proper  for  an  American  abridgment, 
various  opinions  will  probably  be  entertained  by  the  profession.  It 
is  not,  indeed,  easy  to  say  what  plan  would,  abstractedly  speaking, 
be  best.  Much  must  depend  upon  the  extent  and  object  of  the  work ; 
and  even  here  there  is  sufficient  room  for  diversity  of  judgment, 
without  in  the  slightest  degree  indulging  in  dogmatism.  Whoever 
selects  must  omit  something  :  and  what  is  proper  to  be  omitted, 
and  what  to  be  retained,  is,  of  course,  a  matter  for  the  exercise  of 
much  delicate  discretion.  If  the  object  of  the  author  be  to  present 
to  the  learned  in  the  profession  a  mere  dry  abstract  of  principles, 
with  cases  to  illustrate  them,  a  more  perfect  model  than  Comyns's 
Digest  can  scarcely  be  devised  ;  and  an  order,  if  not  strictly  alpha- 
betical, at  least  nearly  approaching  to  it,  will  be  naturally  resorted 
to.  If,  on  the  other  hand,  he  wishes  to  expound  the  reasons  of  the 
law,  or  to  comment  on  cases  with  a  view  to  try  their  accuracy,  and 
to  deal  with  all  parts  of  the  same  general  subject  in  the  mode  of 
dissertation,  he  will  bring  together  all  the  incidental  topics  ;  and 
then,  of  course,  to  some  extent,  he  must  desert  an  alphabetical 
arrangement.  Again,  if  his  object  be  to  present  matter  of  direct 
and  positive  authority,  only  to  assist  experienced  advocates  in  their 
consultations,  he  may  spare  many  explanations,  which  are  indispen- 
sable for  students.  If,  on  the  other  hand,  his  main  object  be  to 
instruct  students,  and  give  collateral  aids  to  the  profession  at  large, 
he  will  begin  with  the  easier  branches  of  the  law,  and  gradually 
open  upon  those,  which  require  more  thought,  sagacity,  and  expe- 
rience. He  will,  for  instance,  begin  with  the  law  of  contracts, 
rather  than  with  the  intricate  distinctions  of  real  estates.  He  will 
initiate  the  student  in  matters  of  general  observation  and  practice, 
before  he  deals  with  the  more  recondite  portions  of  jurisprudence. 
He  will  embody,  in  some  degree,  the  general  principles  with  the 
remedies,  which  accompany  a  violation  of  them  ;  so  that  the  student 
may  perceive,  that  he  is  to  practise,  at  the  very  outset,  whatever 
he  is  taught. 

It  is  manifest,  that,  under  such  circumstances,  the  whole  plan  and 
method  of  a  work  must  essentially  deviate  from  an  alphabetical 
order;  and  that  materials  must  often  be  separated,  where,  upon 
another  plan,  they  would  be  joined,  and  joined,  where  they  would 
otherwise  stand  at  great  distances.     The  only  rule,  then,  that  can 


Dane's  digest  of  American  law.  337 

be  laid  down  in  cases  of  this  nature,  is  to  judge  of  the  work  from 
the  design  of  the  author ;  or,  as  Pope  expresses  it, 

"  In  every  work  regard  the  writer's  end, 
Since  none  can  compass  more  than  they  intend." 

Mr.  Dane  in  his  Introduction  has  given  very  much  at  large 
the  plan  and  objects  of  his  work.  Its  objects  may  be  summarily 
stated  to  be,  to  frame  an  abridgment  "  to  be  useful  to  American 
lawyers,  especially  to  students,  and  those  of  the  profession,  who 
cannot  possess  many  books ; "  "  to  make  our  American  charters 
and  constitutions,  statutes  and  adjudged  cases,  the  groundwork  of 
each  subject,  and  therewith  to  incorporate  that  portion  of  the 
English  law,  recognised  in  the  United  States,  beginning  with  Magna 
Charta,  and  the  first  charters  and  statutes  in  our  colonies ; "  "  to 
examine  such  cases,  as  are  binding  on  all  parts  of  the  Union,  and 
to  cite  some  of  the  most  important  verbatim,  and  abridge  the 
others ; "  to  include  as  much  of  the  local  law  of  the  different  states 
as  is  practicable  ;  and  to  incorporate  manuscript  reports  of  adjudi- 
cations, not  in  print. 

Thus  far,  as  to  the  objects  of  the  work.  It  appears  to  us,  that 
these  objects  are  sufficiently  comprehensive,  and  that  the  principle 
of  selection,  which  pervades  the  whole,  is  highly  creditable  to  the 
judgment  of  the  learned  author.  In  regard  to  one  point  only  will 
there  probably  be  much  difference  of  opinion  with  the  profession  ; 
and  that  is,  whether  local  law  ought  to  find  a  place  in  the  work  ; 
and  if  it  ought,  how  far  the  selection  of  the  local  law  of  Massachu- 
setts, as  a  basis,  is  judicious.  On  this  point  let  Mr.  Dane  speak 
for  himself;  and  we  think  no  one  will  deny,  that  his  suggestions  are 
of  very  great  weight.  In  enumerating  the  objects  of  the  work,  he 
says,  one  is, 

"  To  examine  the  charters,  constitutions,  and  statutes  of  the 
several  colonies  and  states,  of  a  public  nature,  and  the  judicial 
decisions  made  in  the  highest  courts  in  them,  and  published,  so  far 
as  to  acquire  correct  ideas  of  such  state  law  ;  but  so  voluminous  is 
it,  and  so  much  of  it  merely  local,  in  small  portions  of  the  nation, 
that  it  has  been  deemed  not  practicable  or  useful  to  include  large 
portions  of  it  in  this  work,  except  in  regard  to  a  few  of  the  states  ; 
and  it  has  been  considered,  that  the  judges  and  lawyers  of  any 
state  best  understand  its  local  laws  ;  and  it  will  be  found,  that  the 
courts  in  one  state  have  not  often  noticed  the  laws  and  decisions  in 
other  states. 

43 


338  REVIEWS. 

"  This  being  the  case  in  regard  to  state  law,  it  was  found  best 
to  select  the  state  law  of  some  one  state,  to  be  included  much  at 
large  in  this  work.  Accordingly,  the  laws  of  Massachusetts,  in 
substance  including  Maine,  have  been  selected  for  the  purpose, 
and  for  the  following  reasons.  1.  These  laws  are,  in  fact,  the  laws 
of  two  large  states.  2.  With  these  the  author  has  long  been  well 
acquainted.  3.  As  the  other  New-England  states  were  at  first 
peopled  from  Massachusetts,  her  laws  were  the  root  of  theirs. 
4.  Her  laws,  as  to  the  rights  of  persons,  property,  &c,  were  made 
the  root  or  germ  of  nearly  all  our  territorial  law  east  of  the  Missis- 
sippi, by  being  made  the  material  parts  of  the  ordinance  of  Con- 
gress, passed  July  13,  1787,  for  the  government  of  the  United 
States'  territories  northwest  of  the  Ohio,  and  from  time  to  time 
extended  to  their  other  territories,  as  will  appear  on  examining  the 
ordinance  itself.  5.  Much  the  largest  part  of  the  judicial  decisions 
made  in  Massachusetts  (and  Maine)  have  been  made  on  those 
principles  of  law,  which  are  common  to  all  the  states,  except 
Louisiana.  6.  Many  of  the  statutes  of  Massachusetts  having  been 
copied  or  formed  in  substance  from  English  statutes,  and  many 
others  of  our  colonies  and  states  having  done  the  same,  her  statutes 
in  these  respects  are  substantially  theirs  ;  for  instance,  Massachu- 
setts. Virginia,  &c.,  nearly  copied  their  statutes  of  limitations  from 
the  statutes  of  limitations  of  the  32d  Henry  VIII.,  ch.  2.,  and 
hence,  so  far,  the  statutes  of  one  are  those  of  all. 

"  However,  there  is  embraced  in  this  work  much  of  the  local 
law  of  the  other  states  in  the  Union  in  different  ways,  especially 
of  New  York,  Virginia,  and  Kentucky.  The  state  of  Louisiana 
having,  by  statute,  adopted  the  new  French  civil  code,  with  some 
variations,  and  made  it,  of  course,  a  part  of  our  American  system, 
many  parts  of  this  code  have  been  taken  into  this  work.  In  fact, 
on  a  careful  examination  it  will  be  found,  that  more  than  four  fifths 
of  the  decisions  made  in  Massachusetts,  New  York,  and  Virginia, 
stated  in  this  work,  have  been  made  on  principles  and  authorities 
common  to  twenty-three  states,  and  so  practised  on  in  all.  Though 
in  the  statutes  of  the  several  slates  there  is  a  sameness  in  principle, 
yet  there  is  a  vast  variety  in  words  and  detail,  when  not  formed 
from  one  source,  as  above  ;  but  not  a  tenth  part  of  the  law  in  a 
state  is  found  in  its  statute-books.  Owing  to  this  variety,  the  statutes 
of  each  state  must  be  used  somewhat  at  large,  in  order  to  practise 
on  them  safely."    pp.  5,  6. 


Dane's  digest  of  American  law.  339 

We  would  refer  the  reader  to  the  fourteenth  page  of  the  Intro- 
duction, for  a  more  full  exposition  of  the  author's  reasons  for  not 
inserting  in  his  work  more  of  the  local  law  of  the  several  states. 
These  reasons  are,  certainly,  not  without  considerable  weight.  Be- 
sides, such  an  enlargement  of  the  plan  of  the  work  would  have 
occasioned  an  increase  of  its  cost,  without  conferring  an  equal  value 
upon  the  work  ;  for  it  can  hardly  be  supposed,  that  the  profession, 
generally,  would  find  much  local  law  of  so  many  states  useful  to 
them. 

We  are  next  to  consider  the  plan  of  the  work. 

[The  author's  plan  was  here  staled  in  his  own  words.] 

Now  it  seems  to  us,  that,  with  reference  to  the  leading  objects  of 
the  work,  nothing  could  be  more  judicious  than  to  give  a  view  of 
the  general  principles  of  each  branch  of  the  law,  and  to  illustrate 
them  with  cases,  and  then  to  proceed  to  the  more  minute  and  sub- 
ordinate particulars.  The  remarks  and  comments,  which  accom- 
pany the  leading  doctrines  and  cases,  cannot  fail  to  be  useful  to  all 
the  profession  ;  for  they  are  the  result  of  a  half  century's  steady 
devotion  to  the  law,  by  one,  whose  diligence  has  never  been  weary, 
whose  caution  has  been  disciplined  by  very  patient  investigations, 
and  whose  learning  has  been  matured  by  very  extensive  studies. 

The  plan  has  several  peculiarities  ;  but  the  principal  distinction 
between  this  and  other  abridgments  is,  that  in  many  instances  it 
treats  the  rights  and  remedies  of  parties  in  the  same  connexion, 
and  consequently  introduces,  in  no  inconsiderable  degree,  in  the 
discussions  of  remedies,  the  most  important  rules  of  property.  In 
this  respect  it  pursues  a  method,  not  unlike  that  of  Mr.  Espinasse 
in  his  valuable  Digest  of  the  Law  of  Actions  at  Nisi  Prius. 

That  there  are  many  advantages  in  this  system  of  arrangement, 
especially  for  students,  will  be  denied  by  few  ;  that  it  has  some 
disadvantages  ought  not  to  be  concealed.  One  advantage  is,  that 
it  keeps  up  in  the  student's  mind  a  close  affinity  between  the  right 
and  remedy,  and  compels  him  to  make  a  practical  application  of 
his  knowledge,  as  he  advances  in  his  studies.  On  the  other  hand, 
one  disadvantage  is,  that  it  sometimes  separates  into  distinct  heads 
matters  of  the  same  nature,  which  require  different  remedies  in 
different  stages  of  title  ;  and  leads  to  extensive  researches  into 
collateral  questions,  which  do  not  strictly  touch  the  remedy. 
Whichever  way  we  look,  there  is  some  ground,  on  which  the  advo- 
cates of  different   systems   may   rest  plausible   arguments.      The 


340  REVIEWS. 

system,  however,  adopted  by  Mr.  Dane,  is  not  a  rash  innovation ; 
and,  in  our  judgment,  has  much  in  it  entitled  to  commendation. 
If  it  do  not  unite  the  whole  profession  in  its  favor,  it  will  always 
count  among  its  advocates  many  enlightened  jurists.  The  principal 
disadvantage,  in  a  practical  view,  to  which  this  method  of  arranging 
subjects  is  liable,  is,  that  it  is  not  of  so  easy  reference  in  the  hurry 
of  consultation.  But  in  Mr.  Dane's  work  this  disadvantage  is 
entirely  overcome  by  a  general  Index  to  the  whole  work,  occupy- 
ing, with  the  names  of  cases,  a  volume.  This  Judex  we  venture 
to  pronounce  absolutely  unrivalled  in  fulness  and  accuracy,  bring- 
ing within  the  reach  of  the  most  ordinary  diligence  all  the  leading 
positions  and  doctrines  of  this  extensive  compilation. 

As  to  the  execution  of  the  plan,  the  nature  of  which  we  have 
endeavoured  to  explain  in  a  succinct  manner,  it  is  difficult  to  give 
any  but  a  very  general  sketch.  It  is  obviously  impracticable  to  go 
into  the  details  of  a  work,  extending  through  eight  octavo  volumes, 
with  a  crowded  type  and  margin,  and  embracing  nearly  six  thousand 
pages.  We  have  no  room  to  indulge  in  criticisms  on  particular 
passages.  Even  to  examine  the  divisions  and  subdivisions  of  a 
single  title  would  be  a  most  exhausting  process,  and  occupy  more 
pages  than  belong  to  the  review  of  any  single  work.  In  general, 
it  may  be  said,  that  the  learned  author  has  executed  his  task  with 
becoming  diligence  and  ability.  He  has  bestowed  forty  years  of  a 
most  studious  life  in  the  labor ;  and  has  here  given  the  results  of  all 
his  juridical  reading  in  a  compendious  and  accurate  form.  His 
comments  exhibit  various  learning  and  close  reflection  :  and  his 
illustrations  cannot  fail  to  assist  such,  as  seek  for  aid  in  those  ob- 
scurer parts  of  the  law,  which  perplex  by  their  intricacy  and 
equivocal  direction.  We  choose  rather  to  subjoin  extracts  exhibit- 
ing the  actual  execution  of  the  work,  from  which  the  reader  will 
be  able  to  form  a  fair  judgment,  than,  by  mere  general  expressions 
of  approbation,  to  hazard  in  any  respect  the  just  reputation  of  the 
author. 

Upon  one  or  two  topics,  however,  we  wish  to  be  indulged  in 
saying  a  few  words,  because  they  give  a  distinguishing  value  to  this 
Abridgment. 

In  the  first  place,  it  contains  a  full  view  of  the  doctrines,  which 
belong  to  subjects  principally  within  the  cognizance  of  the  Federal 
courts.  Such  are  matters  of  admiralty  jurisdiction,  and  revenue 
seizures  ;  the  law  of  prize  ;  the  rights  and  duties  of  neutral  nations  ; 
the   claims   of    foreign   sovereignties   to  immunities   in   our  courts. 


Dane's  digest  of  American  law.  341 

and  other  topics  connected  with  the  administration  of  public  law  ; 
the  equity  system  administered  in  the  courts  of  the  United  States, 
in  some  respects,  necessarily  varying  from  that,  constituting  a  part 
of  the  local  law  of  the  states  ;  and,  lastly,  this  local  law  itself,  so 
far  as  in  these  courts  it  regulates  the  rights  and  remedies  of  par- 
ties, and  is  brought  into  discussion  in  cases  between  citizens  of 
different  states.  The  complicated  relations  of  the  states  with  each 
other  make  the  administration  of  this  branch  of  jurisprudence 
(which  may,  not  unfitly,  be  denominated  international  private  lavi) 
a  task  of  no  inconsiderable  delicacy  and  difficulty.  Above  all,  it 
embraces  the  discussions  of  those  questions  of  constitutional  law, 
which  have,  on  various  occasions,  engaged  the  earnest  attention  of 
the  different  states  in  the  Union,  and  which  have  been  so  ably 
argued  at  the  bar  of  the  Supreme  Court  of  the  United  States. 

In  the  next  place,  it  devotes  a  whole  chapter  to  the  collection 
and  arrangement  of  the  laws  of  the  several  states  respecting  titles 
to  real  estate,  by  grant,  by  devise,  and  by  descent  and  distribution. 
This,  of  course,  must  bring  together  a  very  important  mass  of 
matters,  not  easily  found  in  any  single  private  or  public  library,  and 
furnish  ample  means  not  only  for  professional  instruction,  but  for 
the  exercise  of  legislative  discretion.  The  harmonies  and  discre- 
pances of  the  different  systems  are  thus  presented  in  a  single  view  ; 
and  the  best  opportunity  afforded  of  correcting  errors,  and  intro- 
ducing gradually  homogeneous  and  consistent  regulations  on  these 
vital  interests  of  the  Union. 

Moreover,  it  embraces  a  large  collection  of  decisions,  many  of 
which  have  never  before  appeared  in  print,  and  are  valuable,  from 
their  general  applicability,  as  well  as  the  fidelity,  with  which  they 
are  reported.  Before  the  publication  of  regular  reports  in  our 
country,  many  questions  of  the  highest  moment  were  litigated  and 
decided  in  our  courts,  which  form  rules  of  property  ;  and  it  is  no 
inconsiderable  present  to  the  profession  to  embody  these  in  an 
authentic  form,  as  well  as  to  add  to  some  of  the  cases  now  in  print 
reports  more  full,  exact,  and  satisfactory. 

Again,  large  extracts  are  introduced  from  the  civil,  the  French, 
and  other  foreign  law.  The  utility  of  this  part  of  the  work  can- 
not escape  the  observation  of  the  profession.  The  civil  law,  modi- 
fied by  French  and  Spanish  ordinances  and  usages,  constitutes  the 
basis  of  the  law  of  Louisiana  and  the  territory  of  the  Floridas. 
These  portions  of  the  Union  are  daily  becoming  more  and  more 
interesting,  in  a   commercial  view,  to  all   the   states.     The   law, 


342  REVIEWS. 

which  there  regulates  civil  and  commercial  rights  and  remedies, 
is  of  ffreat  practical  importance  to  emigrants,  to  merchants,  and  to 
relatives  residing  in  distant  regions.  Unlike  the  other  states,  in 
which  a  common  jurisprudence,  that  of  the  common  law,  prevails, 
these  territories  are  perpetually  presenting  unsuspected  differences, 
not  onlv  in  rights,  bul  in  the  administration  of  remedies,  which 
require  to  he  accurately  known,  in  older  to  avoid  embarrassing  and 
often  fatal  mistakes.  Lawyers,  therefore,  in  every  part  of  the 
Union,  will  gladly  accept  any  means  of  assisting  their  inquiries  on 
these  subjects,  and  will  find  ready  answers  to  many  questions. 
Fortunately  for  Louisiana,  no  inconsiderable  portion  of  her  civil 
jurisprudence  has  been  reduced  into  a  systematic  code,  whose  basis 
is  that  admirable  performance,  the  .Napoleon  Code.  Mr.  Living- 
ston is  now  executing,  under  her  patronage,  a  Digest  of  her  Crimi- 
nal Jurisprudence  ;  and  from  the  portions,  which  we  have  been 
permitted  to  inspect,  we  have  no  difficulty  in  saying,  that  it  is  a 
work  of  singular  acuteness  and  philosophical  precision,  and  in  the 
highest  decree  creditable  to  his  genius  and  industry.  Such  works 
have  been  occasionally  disparaged  by  the  exclusive  admirers  of  the 
common  law,  and  still  more  so  by  the  overheated  zeal  and  extrava- 
gance of  some  of  the  advocates  of  codes  ;  but  we  feel  a  confidence, 
that  the)  are  so  useful  and  convenient,  that  they  will,  at  no  distant 
period,  attract  the  attention  of  the  legislatures  of  other  states,  and 
gradually  lead  to  great  improvements  in  the  science  of  legislation, 
as  well  as  in  the  actual  administration  of  the  law. 

But  it  is  not  in  this  view  alone,  that  the  civil  and  foreign  law 
have  claims  upon  those,  whose  province  it  is  to  cultivate  the  study 
of  the  common  law.  The  civil  law  itself  is  an  inexhaustible 
treasury  of  general  principles,  solid  distinctions,  and  just  doctrines, 
applicable  to  the  concerns  of  a  busy  commercial  age,  and  espe- 
cially to  every  species  of'  commercial  contracts.  The  common  law 
has,  indeed,  appropriated  to  itself,  without  a  fair  acknowledgment, 
many  principles  of  this  admired  jurisprudence.  Our  law  of  con- 
tracts rests  on  this  basis,  and  has  become  equitable  only  so  far  as  it 
has  ceased  to  lie  feudal,  and  liberal  so  far  as  it  has  been  drawn 
from  Roman  fountains.  The  splendid  panegyric  of  Gibbon,  in  the 
forty-fourth  chapter  of  his  Decline  and  Fall  of  the  Roman  Empire, 
is  not  a  mere  vainglorious  boa^t,  but  is  supported  by  facts.  "The 
vain  titles  of  the  victories  of  Justinian,"  says  the  historian,  "  are 
crumbled  into  dust  ;  but  the  name  of  the  legislator  is  inscribed  on 
a   fair   and   everlasting   monument.     Under  his  reign,  and  by  his 


Dane's   digest  of  American  law.  343 

care,  the  civil  jurisprudence  was  digested  in  the  immortal  works  of 
the  Code,  the  Bandects,  and  the  Institutes.  The  public  reason  of 
the  Romans  has  been  silently  or  studiously  transfused  into  the 
domestic  institutions  of  Europe  ;  and  the  laws  of  Justinian  still 
command  the  respect  or  obedience  of  independent  nations."  Dr. 
Brown,  a  very  competent  judge,  in  one  of  the  notes  to  his  Brief 
Sketch  of  the  Civil  Law,  says,  "  1  scarcely  ever  yet  have  met  with 
a  point,  not  connected  with  the  feudal  law,  in  which,  if  English 
books  did  not  satisfy  the  doubt,  I  have  failed  to  find  its  resolution 
in  the  civil  law."  Can  it,  then,  be  doubted,  that  an  incorporation 
of  such  of  the  civil  law  principles,  as  are  illustrative  of  the  com- 
mon law,  into  an  abridgment,  is  of  great  value  to  students,  and 
especially  to  those1,  who  wish  to  acquire  philosophical  views  of 
jurisprudence,  and  aspire  to  something  beyond  the  reach  of  an 
ordinary  attorney?     The  author  well  remarks,  that, 

"  A  complete  system  of  law  and  equity,  best  calculated  to  pre- 
serve the  power  of  the  magistrate  and  the  rights  of  the  people,  is 
the  last  thing  men  attain  to  in  society.  Peter  the  Great  soon 
understood  every  thing  in  the  civilized  parts  of  Europe,  but  the 
laws  ;  and  because  be  could  not  understand  them,  he  never  ceased 
to  prefer  the  despotism  of  Turkey,  '  where  the  judges  are  not 
restrained  by  any  methods,  forms,  or  laws.'  Ancient  Greece, 
though  eminent  in  other  sciences,  never  bad  such  a  system.  The 
reason  is  seen  in  the  almost  infinite  variety,  extent,  and  combina- 
tion of  ideas,  founded  in  nature,  experience,  and  cultivated  mo- 
rality, so  essential  in  forming  and  completing  such  a  system.  It  is 
very  clear,  that  a  great  republic,  in  which  there  is  room  for 
talents ;  in  which  thoughts  and  actions  are  not  restrained  by  relig- 
ious or  political  despotism  ;  in  which  education  is  encouraged,  and 
moral  character  is  esteemed;  in  which  the  law  rules,  and  not  the 
sword  ;  in  which  each  one  asserts  his  rights  by  law,  and  not  by 
force  ;  and  in  which  there  is  representation,  jury-trial,  and  a  free 
press,  is  the  natural  field  of  law  and  equity  ;  but  to  produce  these 
in  perfection,  there  must  be  a  national  character.  The  rules  of 
law  and  equity,  in  important  matters,  must  be  uniform,  and  pervade 
the  whole  nation."     In  trod.  pp.  14,  15. 


JURIDICAL    DISCOURSES 


AND 


ARGUMENTS 


44 


CHARGE 


DELIVERED  TO  THE  GRAND  JURY  OF  THE  CIRCUIT  COURT  OF  THE  UNITED 
STATES,  AT  ITS  FIRST  SESSION  IN  PORTLAND,  FOR  THE  JUDICIAL  DIS- 
TRICT OF  MAINE,  MAY  8,  1820. 


Gentlemen  of  the  Grand  Jury, 

On  this,  the  first  occasion,  that  I  have  had  the  pleasure  of  meet- 
ing you,  permit  me  to  congratulate  you  on  the  favorable  auspices, 
under  which  we  are  assembled.  Our  country  enjoys  a  state  of 
profound  peace,  under  the  guidance  of  wise  and  moderate  coun- 
cils ;  and  though  our  foreign  commerce  is  considerably  abridged, 
both  in  its  enterprise  and  prosperity,  and  our  domestic  intercourse 
is  thus  sensibly  diminished  ;  yet  we  have  abundant  reason  to 
rejoice,  as  well  in  our  exemption  from  the  calamities,  which  have 
visited  and  oppressed  many  other  nations,  as  in  our  own  positive 
good  fortune.  Our  agriculture  yields  us  the  most  abundant  pro- 
ducts, cheapening  thereby  the  fruits  of  the  earth  to  the  poor  and 
necessitous;  our  really  useful  manufactures  are  increasing  with  a 
slow  but  solid  growth  ;  and  our  industry  and  sound  morals  are 
maturing  a  hardy  population,  which  is  spreading  with  unexampled 
rapidity  into  the  wilderness,  and  making  our  forests  resound  with 
the  cheering  sounds  of  the  axe  and  the  hammer.  In  addition  to 
these  substantial  comforts,  we  are  indulged  by  a  kind  Providence 
with  the  blessings  of  civil,  political,  and  religious  liberty — bless- 
ings of  inestimable  value,  without  which  life  loses  half  its  charms, 
property  all  its  security,  and  patriotism  itself  sinks  back  from  a 
virtue  into  a  gross  and  venal  prejudice. 

The  circumstances,  under  which  I  address  you  at  the  present 
moment,  are,  perhaps,  without  a  parallel  in  the  annals  of  the  other 
quarters  of  the  world.  This  district  has  just  been  admitted  into 
the  Union,  as  a  free,  sovereign,  and  independent  state,  possessing, 


348  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

in  common  with  all  the  others,  an  equality  of  national  rights  and 
honors,  and  protected  by  an  excellent  constitution,  framed  by  its 
own  deliberations  upon  principles  of  justice  and  equity. 

And  in  what  manner  has  this  been  accomplished  ?  Not  by  the 
course,  in  which  the  division  of  empires  has  been  usually  sought 
and  obtained  ;  by  civil  dissension  and  warfare  ;  by  successful  resist- 
ance, wading  through  the  blood  of  friends  and  foes  to  its  purpose  ; 
or  by  the  terror  of  the  sword,  whose  brightness  has  been  stained 
by  the  sacrifice  of  innocence,  or  rusted  by  the  tears  of  suffering 
and  conquered  virtue.  Unhappily  for  mankind,  a  change  of  gov- 
ernment lias  rarely  taken  place  without  involving  evils  of  the  most 
serious  nature.  It  has  been  but  the  triumph  of  tyranny  in  the 
overthrow  of  the  liberties  of  the  people  ;  or  the  sudden  reaction 
of  popular  resentment,  indignant  at  wrongs,  and  stimulated  to 
criminal  excesses. 

Here  a  different  scene,  a  scene  of  peace  and  good  order,  has 
been  presented.  The  separation  has  been  the  result  of  cool  de- 
liberation, and  cautious  examination  of  the  interests  of  both  parties. 
It  has  been  conducted  in  a  spirit  of  mutual  conciliation  and  friend- 
ship, with  an  anxious  desire  to  promote  the  real  happiness  and 
prosperity  of  the  people.  It  has  been  emphatically,  and  by  no 
fanciful  analogy,  like  the  separation  of  a  parent  from  his  child, 
when  the  latter  has  attained  maturity  of  years  and  experience. 
And,  like  that  separation,  I  trust,  it  will  only  lay  more  surely  the 
foundation  of  a  mutual  respect,  sustained  by  the  sense  of  inde- 
pendence, and  chastened  by  grateful  recollections  of  the  past,  and 
an  earnest  solicitude  for  the  solid  glory  of  the  future. 

At  this  new  starting  point  of  your  political  existence,  it  cannot 
be  disguised,  that  much  of  your  future  character  and  prosperity 
will  depend  upon  the  wisdom  and  moderation  of  your  public 
councils.  The  great  system  of  your  government  is  to  be  put  into 
operation,  and  your  laws  remoulded  and  adapted  to  your  own 
peculiar  circumstances.  May  I  venture  to  suggest,  that  a  liberal 
and  comprehensive  policy,  in  respect  to  your  public  institutions  and 
judicial  establishments,  cannot  fail  to  produce  the  happiest  effects, 
by  creating  confidence  at  home  and  distinction  abroad.  Let  your 
laws  be  framed  for  the  permanent  welfare  of  all  the  people,  for 
the  security  of  private  rights  and  private  property,  and  for  the 
promotion  of  good  education,  and  learning,  and  religion.  No 
system,  that  aims  merely  at  temporary,  or  party,  or  local  objects, 
or,  that  bends  the  great  interests  of  the  whole  to  the  partial  benefit 


CHARGE    TO    THE    GRAND    JURY    AT    PORTLAND.  349 

of  the  few,  ever  was,  or  ever  can  be,  salutary.  Such  a  system  is 
not  only  unworthy  of  a  free  and  enlightened  people  ;  but  brings 
disgrace  and  ruin,  wherever  it  is  established.  It  is  the  harbinger  of 
faction  and  discontent ;  and  leads  to  animosities,  from  which  the 
people  can  derive  nothing,  but  bad  laws,  bad  morals,  and  bad 
government. 

May  1  venture,  also,  to  add,  that  nothing  can  be  of  more  conse- 
quence to  yourselves  and  to  our  common  country,  than  that  you 
should  cherish  an  habitual  devotion  to  the  constitution  and  gov- 
ernment of  the  United  States.  I  look  upon  that  constitution  as 
the  great  security  of  all  our  most  valuable  political  and  civil  rights. 
It  is  the  only  effectual  barrier  against  foreign  conquest  and  do- 
mestic feuds,  against  the  inroads  of  military  ambition,  and  the  more 
subtile,  though  not  less  dangerous,  designs  of  civic  demagogues.  It 
will  always  be  the  determined,  though  concealed,  purpose  of  the 
latter,  to  undermine  the  foundations  of  the  national  government,  by 
stirring  up  jealousies  of  its  legitimate  powers;  and,  under  an  affec- 
ted devotion  to  popular  rights,  to  take  advantage  of  temporary 
prejudices,  and  thereby  gradually  withdraw  the  affections  of  the 
people  from  those  principles,  which  the  wisdom  of  our  fathers  has 
consecrated  as  the  keystones  of  the  Union.  I  know  not,  indeed, 
how  it  is  possible  better  to  express  the  opinion,  which  every  sound 
patriot  and  statesman  ought  to  entertain  on  this  subject,  than  in  the 
language  of  that  Farewell  Address,  which  the  great  and  good 
Washington  has  left  as  his  last  benediction  to  his  country. 

"  The  unity  of  government,  which  constitutes  you  one  people, 
is  also  now  dear  to  you.  It  is  justly  so ;  for  it  is  a  main  pillar  in  the 
edifice  of  your  real  independence  ;  the  support  of  your  tranquillity  at 
home,  your  peace  abroad  ;  of  your  safety,  of  your  prosperity,  of 
that  very  liberty,  which  you  so  highly  prize.  But  as  it  is  easy  to 
foresee,  that,  from  different  causes,  and  from  different  quarters,  much 
pains  will  be  taken,  many  artifices  employed,  to  weaken  in  your 
minds  the  conviction  of  this  truth  ;  as  this  is  the  point  in  your 
political  fortress,  against  which  the  batteries  of  internal  and  exter- 
nal enemies  will  be  most  constantly  and  actively  (though  often  cov- 
ertly and  insidiously)  directed  ;  it  is  of  infinite  moment,  that  you 
should  properly  estimate  the  immense  value  of  your  national 
union  to  your  collective  and  individual  happiness ;  that  you  should 
cherish  a  cordial,  habitual,  and  immovable  attachment  to  it ;  accus- 
toming yourselves  to  think  and  speak  of  it,  as  of  the  palladium  of 
your   political  safety  and   prosperity  ;  watching  for  its  preservation 


350  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

with  jealous  anxiety  ;  discountenancing  whatever  may  suggest  even 
a  suspicion,  that  it  can  in  any  event  be  abandoned 

"  For  this  you  have  every  inducement  of  sympathy  and  interest. 
Citizens,  by  birth,  or  choice,  of  a  common  country,  that  country  has 
a  right  to  concentrate  your  affections.  The  name  of  American, 
which  belongs  to  you  in  your  national  capacity,  must  always  exalt 
the  just  pride  of  patriotism,  more  than  any  appellation  derived  from 
local  discriminations.  With  slight  shades  of  difference,  you  have  the 
same  religion,  manners,  habits,  and  political  principles.  You  have, 
in  a  common  cause,  fought  and  triumphed  together.  The  inde- 
pendence and  liberty  you  possess  are  the  work  of  joint  councils, 
and  joint  efforts,  of  common  dangers,  sufferings,  and  successes." 

Such  is  the  language,  now  speaking,  as  it  were,  from  the  grave, 
of  him,  who  was  "  first  in  war,  first  in  peace,  and  first  in  the  hearts 
of  his  countrymen." 

Having  premised  these  remarks,  which  are  drawn  from  me  by 
a  sense  of  duty,  and  a  sincere  regard  to  the  welfare  of  your  rising 
state,  and  which,  1  trust,  will  be  received  in  the  spirit  of  candor,  in 
which  they  have  been  delivered,  permit  me  now  to  call  your  atten- 
tion to  the  subjects,  which  more  immediately  belong  to  your  cog- 
nizance, as  a  Grand  Jury  of  the  United  States. 

You  are  impannellcd  to  make  due  inquiry  and  presentment  of 
all  crimes,  which  have  been  committed  against  the  United  States 
within  the  judicial  district  of  Maine.  The  oath  of  office,  which 
has  been  administered  to  you,  contains  a  general  outline  of  the 
duty  required  of  you.  You  are  to  inquire  with  diligence,  and  to 
make  true  and  faithful  presentments,  unaffected  by  any  motives, 
but  those,  which  should  influence  conscientious  and  rational  minds. 
You  are  to  inquire  without  fear,  favor,  affection,  or  hope  of  reward, 
on  the  one  side;  and  without  the  prejudices  arising  from  hatred, 
envy,  or  malice,  on  the  other.  I  am  sure,  that  1  need  hardly  press 
upon  your  attention  the  solemnity,  dignity,  and  importance  of 
your  office.  You  are  selected  to  guard  the  public  peace,  and  to 
maintain  the  public  laws  ;  to  accuse  the  guilty,  and  to  protect  the 
innocent.  What  higher  objects  can  engage  the  attention  of  men, 
looking  to  the  great  interests  of  society  ?  What  nobler  ends  can 
be  proposed,  than  those,  which  administer  to  the  tranquillity  and 
happiness  of  our  friends  and  fellow-citizens  ?  What  can  be  more 
acceptable  to  God,  or  more  conformable  to  the  dictates  of  religion, 
than  the  promotion  of  justice,  the  succour  of  virtue,  and  the  re- 
lief of  the   injured  and  oppressed  ?     Nor  can   any  one,  who  seri- 


CHARGE    TO    THE    GRAND    JURY    AT    PORTLAND.  351 

ously  reflects  upon  the  invaluable  blessings  of  a  free  government, 
hesitate  to  give  all  his  aid  to  the  clue  and  regular  administration  of 
public  justice.  It  is  utterly  impossible,  that  real  liberty  can  long 
remain  among  a  people  sunk  in  vice  and  indifferent  to  crimes.  The 
forms  and  shadows  of  its  institutions  may  remain,  to  deceive  the  idle 
spectator  ;  but  that  spirit,  which  can  alone  quicken  into  life  the 
principles  of  freedom,  is  gone  for  ever.  The  history  of  other 
nations  is  full  of  melancholy  instruction  on  this  subject.  The 
mockery  and  parade  of  the  symbols  of  liberty  long  survived  the 
desolation  of  their  rights.  It  was  the  amusement  of  their  tyrants 
to  trick  out  the  republic  in  its  ancient,  and  venerable,  and  tattered 
habiliments,  when  all  its  virtue,  and  its  glory,  and  its  patriotism,  had 
passed  through  the  last  offensive  stages  of  mortality,  and  dissolved 
into  dust  in  its  ruined  sepulchres.  The  temples  of  religion,  indeed, 
remained  in  their  majesty  ;  but,  instead  of  that  charity,  which,  "  be- 
lieveth  all  things,  hopeth  all  things,  endureth  all  things,"  the  sullen 
spirit  of  persecution  inhabited  there.  The  halls  of  legislation  re- 
sounded with  the  voices  of  eloquence  and  learning  ;  but  they  were 
employed  to  justify  laws  written  in  blood,  or  to  wring  from  an  afflicted 
and  humbled  people  the  last  relics  of  their  liberty.  The  courts  of 
justice,  too,  entertained  within  their  walls  the  grave  controversies  of 
poor  and  suffering  suitors ;  but  corruption  deposited  its  deadly 
poison  upon  their  ermine,  and  bought  the  patrimony  of  orphans 
and  widows  with  bribes,  and  left  them  to  perish  at  the  very  doors 
of  the  sanctuary.  These  are  no  idle  pictures  of  the  fancy.  They 
are  written  on  the  records  of  many  a  nation,  once  ennobled  by  its 
freedom  and  enlightened  policy,  and  now  existing,  only  the  sad 
monument  of  its  own  wretchedness. 

Nor  let  us  indulge  the  vain  hope,  that  we  shall  escape  a  like 
fate,  if  we  neglect  to  preserve  those  institutions  in  their  purity, 
which  sustain  the  great  interests  of  society.  If  we  grow  indiffer- 
ent to  the  progress  of  vice  ;  if  we  silently  wink  at  violations  of 
the  laws  ;  if  we  habitually  follow  the  current  of  public  opinion, 
without  pausing  to  consider  its  direction  ;  if  we  cherish  a  sullen  and 
irreverent  disregard  of  the  constitution  of  government,  under  which 
we  live,  or  resign  ourselves  to  factious  discontent  under  the  exer- 
cise of  its  legitimate  powers  ;  the  time  is  not  far  distant,  when  we 
shall  be  separated  into  rival  states,  engaged  in  furious  contests  for 
paltry  objects,  and  ultimately  become  the  prey  of  some  unprin- 
cipled chieftain,  who  will  first  arrive  at  power  by  flattering  popular 
prejudices,  and  then  secure  his  bad  eminence  by  the  destruction  of 
the  liberties  of  his  country. 


352  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

May  this  melancholy  epoch  never  have  an  existence  in  our 
history  !  Much,  indeed,  may  be  done,  under  the  indulgence  of  a 
benign  Providence,  to  avert  such  evils,  if  all  our  good  citizens  will 
unite  to  enforce  the  laws,  to  cherish  an  habitual  obedience  to  their 
precepts,  and  to  inculcate  a  reverence  for  the  administration  of 
public  justice.  And  you,  Gentlemen  of  the  Grand  Jury,  in  par- 
ticular, to  whom  is  entrusted  the  high  responsibility  of  watching 
over  the  public  rights,  and  suppressing  public  offences,  you  may  do 
much  to  perpetuate  our  liberties,  by  an  honest,  zealous,  and  resolute 
discharge  of  your  duty. 

The  practice  of  the  court  has  ordinarily  been  to  lay  before  you 
an  enumeration  in  detail  of  all  the  crimes,  of  which  you  are  to  take 
cognizance.  But  on  the  present  occasion  I  shall  feel  myself  better 
employed  by  dwelling  somewhat  at  length  on  certain  offences  of  a 
graver  cast,  which  are  unhappily  but  too  common  in  our  age,  and 
require  the  severe  animadversion  of  all  good  men,  from  their  mani- 
fest tendency  to  foster  the  foulest  passions  and  the  most  unnatural 
cruelties.  As  to  other  crimes,  as  I  am  not  aware,  that  any  of  them 
require  your  very  particular  examination,  I  shall  leave  them  to  your 
general  consideration  ;  and,  if  you  shall  have  occasion  for  more 
exact  information,  the  learned  counsel  for  the  United  States,  and 
the  Court,  will  most  cheerfully  aid  your  inquiries. 

And  first,  Gentlemen,  let  me  call  your  attention  to  the  crime  of 
Piracy.  This  offence  has  in  former  times  crimsoned  the  ocean 
with  much  innocent  blood,  and  in  its  present  alarming  progress 
threatens  the  most  serious  mischiefs  to  our  peaceful  commerce.  It 
cannot  be  disguised,  that  at  the  present  times  there  are  hordes  of 
needy  adventurers  prowling  upon  the  ocean,  who,  under  the  specious 
pretext  of  being  in  the  service  of  the  Patriot  Governments  of  South 
America,  commit  the  foulest  outrages.  Being  united  together  by 
no  common  tie  but  the  love  of  plunder,  they  assume  from  time  to 
time  the  flag  of  any  nation,  which  may  best  favor  their  immediate 
projects  ;  and  depredate,  with  indiscriminate  ferocity,  upon  the  com- 
merce of  the  neutral  world,  regardless  of  the  principles  of  law  and 
the  dictates  of  justice.  It  often,  too,  happens,  as  might  well  be 
expected  in  such  wicked  associations,  that,  after  their  lawless  designs 
are  consummated,  they  quarrel  among  themselves  about  the  divis- 
ion of  their  spoils,  and  their  quarrels  end  in  involving  themselves 
in  the  blood  of  their  comrades.  Persons  of  this  description  are,  in 
the  most  general  sense  of  the  term,  pirates  or  freebooters,  and  are 
aptly  denominated  the   enemies   of  the  human  race,   and   as  such 


CHARGE    TO    THE    GRAND    JURY    AT    PORTLAND.  353 

become  amenable  to  the  tribunals  of  all  civilized  nations  for  their 
crimes,  and  by  the  laws  of  all,  as  I  believe,  are  punished  with 
death. 

While,  therefore,  we  may  properly  indulge  towards  the  South 
Americans  a  reasonable  sympathy  in  their  struggle  for  civil  and 
religious  liberty,  and  while  we  respect,  with  the  most  guarded  cau- 
tion, the  rights  of  the  regular  commissioned  ships  of  their  Govern- 
ments, (as  by  law  we  are  bound  to  do,)  we  should  take  care,  that 
our  feelings  are  not  wasted  upon  men,  who  falsely  assume  the  pro- 
tection of  their  flag,  and  that  our  judgments  are  not  misled  by 
framing  apologies  for  depredations,  from  which  virtue  and  patriotism 
turn  with  disgust. 

Piracy,  according  to  the  common  law,  consists  in  committing 
those  acts  of  depredation  and  robbery  at  sea,  which,  if  committed 
upon  land,  would  amount  to  felony  there  ;  and  it  is  piracy,  not  only 
when  a  man  robs  without  any  commission  at  all,  but  when,  having 
a  commission,  he  fraudulently,  or  with  a  thievish  intent,  despoils 
those,  with  whom  he  is  not  warranted  to  fight  or  meddle  ;  that  is, 
such  as  are  at  peace  with  the  prince  or  state,  from  which  he  derives 
his  commission.  Piracy  at  sea  is,  indeed,  the  same  crime  as  rob- 
bery on  land  at  the  common  law.  And  robbery  is  the  felonious 
taking  away  of  goods  or  money  from  the  person  or  presence  of 
another  against  his  will,  by  force  or  violence,  or  by  putting  him  in 
fear.  It  includes,  therefore,  the  crime  of  theft,  and  something 
more,  namely,  the  taking  with  force  or  violence  from  a  person,  or  in 
his  presence,  or  putting  him  in  fear.  There  must  be  either  violence 
or  putting  in  fear  to  constitute  the  crime  ;  but  both  need  not  con- 
cur. Such  is  the  definition  of  piracy  at  the  common  law  ;  and  it 
does  not  differ  in  any  essential  respect  from  that  adopted  in  the  law 
of  nations  ;  for  in  this  law  piracy  consists  in  unlawful  and  fraudu- 
lent depredations  with  force  upon  the  property  of  another  at  sea, 
without  authority  from  any  prince  or  state.  The  essence  of  the 
offence  is  the  fraudulent  subduction  or  theft  of  property,  with  vio- 
lence, from  the  persons,  in  whose  custody  it  rawfully  is.  The  act 
must  be  done,  in  the  language  of  the  law,  "  animo  furandi,"  that  is, 
with  the  intent  to  commit  a  theft ;  and  it  is  not  committed  by  a 
mere  excess  of  lawful  authority,  unless  combined  with  the  intent  of 
fraudulent  gain.  And,  indeed,  Mi'.  Sergeant  Hawkins  has  given 
an  exact  description  of  the  offence,  according  to  the  sense  of  the 
law  of  nations,  when  he  declares  a  pirate  to  be  "  one,  who,  to  enrich 
45 


354  JURIDICAL    DISCOURSES    AND     ARGUMENTS. 

himself,  either  by  surprise  or  open  force,  sets  upon  merchants  or 
others  trading  by  sea,  to  spoil  them  of  their  goods  and  treasure." 

By  a  recent  statute  of  the  United  States,  in  order  more  effectu- 
ally to  suppress  this  odious  offence,  it  is  enacted,  that,  if  any  person 
shall,  on  the  high  seas,  commit  the  crime  of  piracy,  as  defined  by 
the  law  of  nations,  and  be  afterwards  found  in  the  United  States, 
he  shall  on  conviction  suffer  death.  This  statute  is  manifestly 
designed  to  apply  to  all  cases,  whether  the  crime  be  perpetrated  on 
board  of  an  American  ship  or  a  foreign  ship,  and  whether  the 
offender  be  a  foreigner  or  citizen. 

But  there  are  other  acts,  which  the  laws  of  the  United  States 
have  declared  piracy,  which  are  punishable  as  such,  only  when 
committed  on  board  of  American  ships,  or  by  persons,  who  are 
justly  amenable  to  our  criminal  jurisdiction.  For  no  nation  can 
have  any  right  by  its  own  legislation  to  bind  the  subjects  of  foreign 
governments  as  to  offences,  which  fall  within  the  exclusive  cogni- 
zance of  such  governments. 

The  acts,  to  which  I  have  alluded,  I  will  now  proceed  to  enu- 
merate. 

1.  The  first  act  is  the  perpetration  of  murder,  robbery,  or  any 
other  offence  on  the  high  seas,  which,  if  committed  on  land,  would 
by  the  laws  of  the  United  States  be  punishable  with  death. 

The  crime  of  robbery,  here  referred  to,  is  that  crime,  as  defined 
by  the  common  law,  which  we  have  already  considered. 

Murder  consists  in  the  unlawful  killing  of  any  reasonable  crea- 
ture in  being,  under  the  peace  of  the  government,  with  malice 
aforethought.  It  is  this  malice,  which  essentially  distinguishes 
murder  from  every  other  kind  of  homicide ;  and  it  may  be  express, 
as  when  the  crime  is  perpetrated  with  a  sedate  and  deliberate  mind 
and  formed  design  ;  or  it  may  be  implied,  as  when  the  fact  is  at- 
tended with  such  circumstances,  as  are  the  ordinary  symptoms  of  a 
wicked,  depraved,  and  malignant  spirit.  It  matters  not,  how  sudden 
the  transaction  may  have  been,  nor  whether  there  was  a  particular 
malevolence  or  spite  to  the  deceased  or  not ;  it  is  sufficient,  if  there 
be  either  deliberate  malice,  or  circumstances  of  cruelty  and  de- 
pravity, carrying  in  them  "  the  plain  indications  of  a  heart  regard- 
less of  social  duty,  and  fatally  bent  on  mischief.'' 

In  all  charges  of  murder,  the  fact  of  killing  being  first  proved,  all 
the  circumstances  of  accident,  necessity,  or  infirmity,  which  may 
justify  or  excuse  it,  are  to  be  satisfactorily  proved  by  the  prisoner 
at  his  trial.  unlc<-  the)  arise  out  of  the  evidence  produced  against 


CHARGE    TO    THE    GRAND    JURY    AT    PORTLAND.  355 

him ;  for  the  law  presumes  the  fact  to  be  founded  in  malice,  until 
the  contrary  appears. 

2.  A  second  act  declared  piracy,  by  our  laws,  is  the  piratically 
and  feloniously  running  away  with  any  ship  or  vessel,  or  any  goods 
or  merchandise  to  the  value  of  fifty  dollars,  or  the  voluntarily  yield- 
ing up  any  ship  or  vessel  to  any  pirate. 

To  constitute  the  offence  within  this  clause,  the  crime  must  be 
committed  by  the  captain  or  a  mariner  of  the  ship,  and  with  a 
piratical  and  felonious  intent ;  that  is,  with  an  intent  fraudulently 
to  convert  the  property  to  their  own  use,  in  violation  of  their  trust, 
and  against  the  will  of  the  owner ;  and,  where  the  piratical  act  is 
the  taking  of  goods  or  merchandise,  the  taking  must  be  on  board  a 
ship  or  vessel. 

3.  A  third  act  of  piracy,  by  our  laws,  is  the  laying  of  violent 
hands  by  any  seaman  upon  his  commander,  thereby  to  hinder  and 
prevent  his  fighting  in  defence  of  his  ship  or  the  goods  committed 
to  his  trust. 

It  must  be  understood,  as  a  restriction  upon  the  generality  of  this 
clause,  that  the  fighting  of  the  commander  would  be  lawful ;  for,  if 
it  would  be  unlawful,  as  in  defiance  of  public  authority,  in  resistance 
of  the  right  of  search,  or  of  a  justifiable  seizure,  so  far  from  the 
seamen's  being  guilty  of  a  crime,  they  would  be  doing  no  more 
than  their  duty,  and  could  incur  no  blame  whatever. 

4.  A  fourth  act  of  piracy,  by  our  laws,  is  the  making  of  a  revolt 
by  a  mariner  on  board  of  the  ship,  to  which  he  belongs. 

It  is  not  easy  to  enumerate  all  the  various  circumstances,  which 
constitute  a  "  revolt,"  a  word,  which  in  this  clause  is  used  in  the 
sense  of  mutiny  or  rebellion.  A  mere  act  of  disobedience  to  the 
lawful  commands  of  the  oliicers  of  the  ship  by  the  crew  does  not 
of  itself  constitute  a  revolt.  But  if  there  be  a  general  combination  of 
the  crew  to  resist  the  lawful  commands  of  their  officers,  or  to  usurp 
their  authority  on  board  of  the  ship  ;  and  any  overt  acts  are  done 
by  the  crew  in  pursuance  of  such  design  ;  such  as  the  confinement 
of  their  officers,  or  depriving  them  of  the  control  and  management 
of  the  ship ;  these  and  the  like  acts  seem  properly  to  constitute  a 
revolt. 

5.  A  fifth  and  last  act  of  piracy,  by  our  laws,  is,  when  any  citi- 
zen commits  any  piracy  or  robbery  aforesaid,  or  any  act  of  hostility 
against  the  United  States  or  any  citizens  thereof,  upon  the  high 
seas,  under  color  of  any  commission  or  authority  from  any  foreign 
prince  or  state,  or  on  pretence  of  authority  from  any  person. 


356  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

From  this  clause  it  is  apparent,  how  deeply  involved  in  guilt  are 
those  of  our  citizens,  who  enlist  themselves  in  the  armed  ships  of 
foreign  states,  and  commit  hostilities  upon  their  countrymen,  or 
plunder  their  property  ;  since  the  law  declares,  that  they  shall  be 
"  adjudged  and  taken  to  be  pirates,  felons,  and  robbers,"  and  shall 
on  conviction  sutler  death. 

And  I  may  add,  that  all  accessories  before  the  fact,  to  any  of  the 
piracies  before  mentioned,  are  liable  to  the  same  capital  punish- 
ment ;  and  accessories  after  the  fact  are  visited  with  exemplary 
penalties. 

Another  class  of  kindred  offences,  to  which,  Gentlemen,  I  beg 
to  call  your  particular  attention,  is  that,  which  respects  our  rela- 
tions with  foreign  states.  It  has  at  all  times  been  the  wise  deter- 
mination of  our  government  to  endeavour,  amidst  the  contests  of 
belligerent  nations,  to  preserve  its  own  peace  by  a  strict  and  impar- 
tial neutrality.  This  course,  so  just  and  reasonable  in  itself,  and 
founded  in  the  soundest,  and,  1  may  add,  the  noblest  policy,  is  so 
intimately  connected  with  our  best  interests,  in  a  moral,  commercial, 
and  political  view,  that  our  laws  have  most  anxiously  provided  for 
the  due  observance  of  all  our  neutral  duties.  And  yet,  I  know 
not  how  it  has  happened,  but  so  the  fact  is,  many  of  our  citi- 
zens have  been  deluded  by  the  glare  of  a  false  and  hollow  patri- 
otism, deliberately  to  violate  these  laws,  and  to  engage  in  enter- 
prises, not  only  unjust,  but  in  many  instances  accompanied  with  the 
most  shocking  barbarities.  What  authority  have  we  to  become 
the  general  champions  of  the  violated  rights  of  the  human  race, 
and  to  march  in  a  general  crusade  for  the  defence  of  the  liberties 
of  mankind,  where  every  footstep  must  be  traced  in  the  mingled 
blood  of  the  oppressor  and  the  oppressed  ?  With  what  justice  can 
we  complain  of  the  wrongs  of  other  nations,  if  we  assume  the  char- 
acter of  neutrality,  and  yet  violate  all  its  most  sacred  obligations  ? 
if  we  present  that  monstrous  anomaly,  in  the  history  of  the  world, 
of  a  nation  at  peace,  and  its  citizens  at  war  ?  Let  not  our  honor 
be  sullied  by  the  just  accusation,  that  we  want  the  virtue  to  enforce 
our  laws,  or  are  guilty  of  a  mean  hypocrisy  in  suffering  a  collusive 
evasion  of  them.  Let  it  be  the  pride  of  our  country  to  preserve 
an  honest  fame,  without  reproach  ;  and  to  claim  from  foreign  na- 
tions an  observance  of  our  own  rights,  only  when  the  claim  can 
be  enforced  with  clean  hands  and  pure  hearts.  If  motives  like 
these,  so  elevated  and  so  honorable,  cannot  bind  us  to  our  duty, 
as  I  confidently  trust  they  always  will,  let  us  at  least  take  counsel 


CHARGE    TO    THE    GRAND    JURY    AT    PORTLAND.  357 

of  our  fears  and  our  interests,  and  learn  the  wholesome  lesson,  that, 
as  good  faith  is  the  only  sure  foundation  of  national  prosperity, 
so  the  breach  of  it  will  be  visited,  sooner  or  later,  with  national 
degradation  and  ruin.  And,  Gentlemen,  I  entreat  you,  as  guard- 
ians of  the  laws,  to  endeavour  by  your  own  presentments,  as  well 
as  by  your  counsels,  to  bring  to  punishment  all  persons,  who  violate 
our  neutrality,  however  specious  their  pretexts  may  be  ;  and  thus 
to  do  your  part  to  arrest  those  calamities,  which  war,  even  in  its 
mildest  shape,  never  fails  to  inflict  upon  its  innocent  sufferers. 

Our  laws  have  expressly  prohibited  our  citizens  from  accepting 
and  exercising,  within  our  jurisdiction,  a  commission  to  serve  any 
foreign  state,  colony,  or  people,  in  war,  by  land  or  by  sea,  against 
any  other  state,  colony,  or  people.  They  have  also  prohibited  any 
person  whatsoever,  within  our  jurisdiction,  from  enlisting  or  enter- 
ing himself,  or  hiring  or  retaining  another  person  to  enlist  or  enter 
himself,  or  to  go  beyond  our  jurisdiction,  with  intent  to  be  enlisted 
or  entered,  in  the  service  of  any  foreign  state,  colony,  or  people,  as 
a  soldier,  or  as  a  mariner,  or  marine,  in  any  armed  ship.  They 
have  also  prohibited  any  person  whatsoever,  within  our  jurisdic- 
tion, from  fitting  out  and  arming,  or  attempting  to  fit  out  and  arm, 
or  procuring  to  be  fitted  out  and  armed,  or  being  knowingly  con- 
cerned in  the  furnishing,  fitting  out,  or  arming,  of  any  ship,  with 
intent,  that  such  ship  shall  be  employed  in  the  service  of  any  for- 
eign prince  or  state,  colony  or  people,  to  cruise  or  commit  hostili- 
ties against  the  subjects  or  property  of  any  foreign  state,  colony, 
or  people,  with  whom  we  are  at  peace ;  and  from  issuing  or  deliv- 
ering a  commission  for  any  such  ship,  to  the  intent,  that  she  shall  be 
employed  as  above  mentioned.  They  have  further  prohibited 
our  citizens,  without  our  jurisdiction,  from  fitting  out  and  arming, 
or  attempting  to  fit  out  and  arm,  or  procuring  to  be  fitted  out  and 
armed,  or  knowingly  aiding  or  being  concerned  in  the  furnishing, 
fitting  out,  or  arming,  any  private  ship  of  war  or  privateer,  with 
intent,  that  such  ship  shall  be  employed  to  cruise  or  commit  hos- 
tilities upon  our  citizens  or  their  property ;  or  from  taking  com- 
mand of,  or  entering  on  board  of  any  such,  for  the  intent  aforesaid  ; 
or  from  purchasing  any  interest  in  any  such  ship,  with  a  view  to 
share  in  the  profits  thereof.  They  have  also  prohibited  any  per- 
son whatsoever,  within  our  jurisdiction,  from  increasing  or  aug- 
menting, or  procuring  to  be  increased  or  augmented,  or  being 
knowingly  concerned  in  increasing  or  augmenting  the  force  of 
any   ship  of  war  or  cruiser,   in   the  service  of  any  foreign  state, 


358  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

colonv,  or  people,  at  war  with  any  foreign  state,  colony,  or  peo- 
ple, by  adding  to  the  number  of  her  guns,  or  by  changing  those 
on  board  for  guns  of  a  larger  calibre,  or  by  the  addition  of  any 
equipment  solely  applicable  to  war.  And  lastly,  our  laws  have 
prohibited  any  person  whatsoever,  within  our  jurisdiction,  from 
beginning,  or  setting  on  foot,  or  providing,  or  preparing,  the  means 
for  any  military  expedition  or  enterprise,  to  be  carried  on  from 
thence  against  the  territory  or  dominions  of  any  foreign  state, 
colony,  or  people,  with  whom  we  are  at  peace. 

Such  are  the  prohibitions  of  our  laws,  enforced  with  suitable 
penalties,  against  violations  of  our  neutrality  ;  and  so  extensive  are 
their  reach,  that,  if  our  good  citizens  will  aid  the  officers  of  the 
government  in  a  vigilant  discharge  of  their  duties,  and  grand  juries 
will  act  with  the  firmness  befitting  their  office,  there  is  little  doubt, 
that  we  shall  be  able  effectually  to  suppress  unlawful  enterprises 
and  combinations,  and  to  restore  the  brightness  of  our  national 
reputation,  over  which  the  impunity  of  recent  outrages  has  some- 
what contributed  to  cast  a  temporary  shade.  Nor  ought  it  to  be 
forgotten,  that,  by  a  faithful  performance  of  our  duty  in  suppressing 
these  offences,  we  shall  contribute  in  a  very  great  degree  to  pre- 
serve the  good  habits  and  sound  morals  of  our  seamen  —  a  class  of 
men  of  inestimable  importance  to  our  commerce,  and  the  bulwark 
of  our  naval  glory.  When  once  they  become  contaminated  by 
participating  in  unlawful  plunder,  the  property  of  our  merchants, 
as  experience  has  but  too  fully  proved,  can  no  longer  be  safely 
confided  to  their  care.  So  true  is  it,  that  the  first  step  in  vice  costs 
us  most;  and  we  thence  slip  easily  downward  into  the  gulf  of 
infamy  and  crime.  He,  who  is  in  the  pursuit  of  guilty  plunder 
by  violations  of  the  laws,  soon  ceases  to  discriminate  between  friends 
and  foes  ;  and  silences  the  voice  of  his  conscience,  by  an  appeal  to 
the  cravings  of  avarice,  stimulated  by  a  self-created  necessity. 

In  the  next  place,  Gentlemen,  let  me  call  your  attention  to 
that  most  detestable  traffic,  the  Slave  Trade.  The  existence 
of  slavery,  under  any  shape,  is  so  repugnant  to  the  natural 
rights  of  man  and  the  dictates  of  justice,  that  it  seems  diffi- 
cult to  find  for  it  any  adequate  justification.  It  undoubtedly 
had  its  origin  in  times  of  barbarism,  and  was  the  ordinary  lot  of 
those,  who  were  conquered  in  war.  It  was  supposed,  that  the 
conqueror  had  a  right  to  take  the  life  of  his  captive,  and  by  con- 
sequence might  well  bind  him  to  perpetual  servitude.  But  the 
position  itself,  on  which  this  supposed  right  is   founded,  is  not  true. 


CHARGE    TO    THE    GRAND    JURY    AT    PORTLAND.  859 

No  man  has  a  right  to  kill  his  enemy,  except  in  cases  of  absolute 
necessity  ;  and  this  absolute  necessity  ceases  to  exist,  even  in  the 
estimation  of  the  conqueror  himself,  when  he  has  spared  the  life 
of  his  prisoner.  And  even  if  in  such  case  it  were  possible  to 
contend  for  the  right  of  slavery,  as  to  the  prisoner  himself,  it  is 
impossible,  that  it  can  justly  extend  to  his  innocent  offspring 
through  the  whole  line  of  descent.  I  forbear,  however,  to  touch 
on  this  delicate  topic,  not  because  it  is  not  worthy  of  the  most 
deliberate  attention  of  all  of  us  ;  but  it  does  not  property  fall 
within  my  province  on  the  present  occasion.  It  is  to  be  lamented, 
indeed,  that  slavery  exists  in  any  part  of  our  country  ;  but  it  should 
be  considered,  that  it  is  not  an  evil  introduced  in  the  present  age. 
It  has  been  entailed  upon  a  part  of  our  country  by  their  ancestors ; 
and  to  provide  a  safe  and  just  remedy  for  its  gradual  abolition  is, 
undoubtedly,  as  much  the  design  of  many  of  the  present  owners 
of  slaves,  as  of  those  philanthropists,  who  have  labored  with  so 
much  zeal  and  benevolence  to  effect  their  emancipation.  It  is, 
indeed,  one  of  the  many  blessings,  which  we  have  derived  from 
Christianity,  that  it  prepared  the  way  for  a  gradual  abolition  of 
slavery,  so  that,  at  the  close  of  the  twelfth  century,  it  was  greatly 
diminished  in  the  west  of  Europe  ;  and  it  is  one  of  the  stains  on 
the  human  character,  that  the  revival  of  letters  and  of  commerce 
brought  with  it  an  unnatural  lust  of  gain,  and  with  it  the  plunder 
and  slavery  of  the  wretched  Africans. 

To  our  country  belongs  the  honor,  as  a  nation,  of  having  set  the 
first  example  of  prohibiting  the  further  progress  of  this  inhuman 
traffic.  The  constitution  of  the  United  States,  having  granted  to 
Congress  the  power  to  regulate  foreign  commerce,  imposed  a  restric- 
tion, for  a  limited  period,  upon  its  right  of  prohibiting  the  migration 
or  importation  of  slaves.  Notwithstanding  this,  Congress,  with  a 
promptitude,  which  does  honor  to  their  humanity  and  wisdom, 
proceeded,  in  1794,  to  pass  a  law  to  prohibit  the  traffic  of  slaves 
by  our  citizens,  in  all  cases  not  within  the  reach  of  the  constitu- 
tional restriction  ;  and  thus  cut  off"  the  whole  traffic  betioeen  for- 
eign ports.  In  the  year  1S00,  an  additional  law  was  passed  to 
enforce  the  former  enactments ;  and  in  the  year  1807,  (the  epoch, 
when  the  constitutional  restriction  was  to  cease,  beginning  with  the 
ensuing  year,)  a  general  prohibition  of  the  traffic,  as  well  in  our 
domestic  as  foreign  trade,  was  proudly  incorporated  into  our  statute- 
book.  About  the  same  period  the  British  Government,  after  the 
most  severe  opposition  from  slave-dealers  and  their  West  Indian 


360 


JURIDICAL    DISCOURSES    AND    ARGUMENTS. 


friends,  achieved  a  similar  measure,  and  enacted  a  general  prohibi- 
tion of  the  trade,  as  well  to  foreign  ports,  as  to  their  colonies. 
This  act  was,  indeed,  the  triumph  of  virtue,  of  reason,  and  of  hu- 
manity, over  the  hard-heartedness  of  avarice;  and,  while  it  was 
adorned  by  the  brilliant  talents  of  Pitt,  Fox,  Komilly,  and  Wilber- 
force,  let  us  inner  forget,  that  its  success  was  principally  owing  to 
the  modest,  but  persevering  labors  of  the  Quakers,  and,  above  all, 
to  the  resolute  patience  and  noble  philanthropy  of  a  man  immor- 
talized by  his  virtues,  the  intrepid  Thomas  Clarkson. 

It  is  a  most  cheering  circumstance,  that  the  examples  of  the 
United  States  and  Great  Britain,  in  thus  abolishing  the  slave- 
trade,  have,  through  the  strenuous  exertions  of  the  latter,  been 
generally  approved  throughout  the  continent  of  Europe.  The 
Government  of  Great  Britain  has,  indeed,  employed  the  most 
indefatigable  and  persevering  diligence  to  accomplish  this  desirable 
object;  and  treaties  have  been  made  by  her  with  all  the  principal 
foreign  powers,  providing  for  a  total  abolition  of  the  trade  within  a 
very  short  period.  May  America  not  be  behind  her  in  this  glo- 
rious work  ;  but,  by  a  generous  competition  in  virtuous  deeds, 
restore  the  degraded  African  to  his  natural  rights,  and  strike  his 
manacles  from  the  bloody  hands  of  his  oppressors. 

By  our  laws  it  is  made  an  offence  for  any  person  to  import  or 
bring,  in  any  manner  whatsoever,  into  the  United  States,  or  its 
territories,  from  any  foreign  country,  any  negro,  mulatto,  or  person 
of  color,  with  intent  to  hold,  sell,  or  dispose  of  him  as  a  slave,  or 
to  be  held  to  service  or  labor.  It  is  also  made  an  offence  for 
any  citizen  or  other  person,  as  master,  owner,  or  factor,  to 
build,  fit,  equip,  load,  or  otherwise  prepare,  any  vessel  in  any 
of  our  ports,  or  to  cause  any  vessel  to  sail  from  any  port 
whatsoever,  for  the  purpose  of  procuring  any  negro,  mulatto, 
or  person  of  color,  from  any  foreign  country,  to  be  transported 
to  any  port  or  place  whatsoever,  to  be  held,  sold,  or  disposed 
of,  as  a  slave,  or  to  be  held  to  service  or  labor.  It  is  also  made 
an  offence  for  any  citizen,  or  other  person  resident  within  our 
jurisdiction,  to  take  on  board,  receive,  or  transport  in  any  ves- 
sel from  the  coast  of  Africa,  or  any  other  foreign  country,  or 
from  sea,  any  negro,  mulatto,  or  person  of  color,  not  an  inhabitant 
of,  or  held  to  service  in,  the  United  States,  for  the  purpose  of  hold- 
ing, selling,  or  disposing  of,  such  person  as  a  slave,  or  to  be  held 
to  service  or  labor.  It  is  also  made  an  offence  for  any  person 
within  our  jurisdiction  to  hold,  purchase,  sell,  or  otherwise  dispose 


CHARGE    TO    THE    GRAND    JURY    AT    PORTLAND.  361 

of  any  negro,  mulatto,  or  person  of  color,  for  a  slave,  or  to  be  held 
to  service  or  labor,  who  shall  have  been  imported  into  the  Unite  I 
States  in  violation  of  our  laws;  and,  in  general,  the  prohibitions  in 
these  cases  extend  to  all  persons,  who  shall  abet  or  aid  in  these 
illegal  designs.  These  offences  are  visited,  as  well  with  severe 
pecuniary  and  personal  penalties,  as  with  the  forfeiture  of  the  ves- 
sels and  their  equipments,  which  have  been  employed  in  the 
furtherance  of  these  illegal  projects  ;  and,  in  general,  a  moiety  of 
the  pecuniary  penalties  and  forfeitures  is  given  to  any  person,  who 
shall  inform  against  the  offenders,  and  prosecute  them  to  conviction. 
The  President  of  the  United  States  is  also  authorized  to  employ 
our  armed  vessels  and  revenue  cutters  to  cruise  on  the  seas,  for  the 
purpose  of  arresting  all  vessels  and  persons,  engaged  in  this  traffic 
in  violation  of  our  laws  ;  and  bounties,  as  well  as  a  moiety  of  the 
captured  property,  are  given  to  the  captors  to  stimulate  them  in  the 
discharge  of  their  duty. 

Under  such  circumstances,  it  might  well  be  supposed,  that  the 
slave-trade  would  in  practice  be  extinguished  ;  that  virtuous  men 
would  by  their  abhorrence  stay  its  polluted  march,  and  wicked  men 
would  be  overawed  by  its  potent  punishments.  But,  unfortunately, 
the  case  is  far  otherwise.  We  have  but  too  many  melancholy  proofs, 
from  unquestioned  sources,  that  it  is  still  carried  on  with  all  the 
implacable  ferocity  and  insatiable  rapacity  of  former  times.  Ava- 
rice has  grown  more  subtile  in  its  evasions  ;  and  watches  and  seizes 
its  prey  with  an  appetite,  quickened,  rather  than  suppressed,  by  its 
guilty  vigils.  American  citizens  are  steeped  up  to  their  very 
mouths  (I  scarcely  use  too  bold  a  figure)  in  this  stream  of  iniquity. 
They  throng  to  the  coasts  of  Africa  under  the  stained  flags  of 
Spain  and  Portugal,  sometimes  selling  abroad  "  their  cargoes  of 
despair,"  and  sometimes  bringing  them  into  some  of  our  Southern 
ports,  and  there,  under  the  forms  of  the  law,  defeating  the  purposes 
of  the  law  itself,  and  legalizing  their  inhuman,  but  profitable,  adven- 
tures. I  wish  I  could  say,  that  New  England  and  New  England 
men  were  free  from  this  deep  pollution.  But  there  is  reason  to 
believe,  that  they,  who  drive  a  loathsome  traffic,  "  and  buy  the 
muscles  and  the  bones  of  men,"  are  to  be  found  here  also.  It  is 
to  be  hoped  the  number  is  small ;  but  our  cheeks  may  well  burn 
with  shame,  while  a  solitary  case  is  permitted  to  go  unpunished. 

And,  Gentlemen,  how  can  we  justify  ourselves   or  apologize  for 
an  indifference  to  this  subject  ?     Our  constitutions   of  government 
have  declared,  that  all  men  are  born  free  and  equal,  and  have  cer- 
46 


362  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

tain  unalienable  rights,  among  which  are  the  right  of  enjoying  their 
lives,  liberties,  and  property,  and  of  seeking  and  obtaining  their  own 
safety  and  happiness.  May  not  the  miserable  African  ask,  "  Am  I 
not  a  man  and  a  brother?'5  We  boast  of  our  noble  struggle  against 
the  encroachments  of  tyranny  ;  but  do  we  forget,  that  it  assumed  the 
mildest  form,  in  which  authority  ever  assailed  the  rights  of  its  sub- 
jects;  and  yet  that  there  are  men  among  us,  who  think  it  no  wrong 
to  condemn  the  shivering  African  to  perpetual  slavery  ? 

We  believe  in  the  Christian  Religion.  It  commands  us  to  have 
good-will  to  all  men  ;  to  love  our  neighbours,  as  ourselves  ;  and  to 
do  unto  all  men,  as  we  would  they  should  do  unto  us.  It  declares 
our  accountability  to  the  Supreme  God  for  all  our  actions,  and  holds 
out  to  us  a  state  of  future  rewards  and  punishments,  as  the  sanction, 
by  which  our  conduct  is  to  be  regulated.  And  yet  there  are  men, 
calling  themselves  Christians,  who  degrade  the  negro  by  ignorance 
to  a  level  with  the  brutes,  and  deprive  him  of  all  the  consolations 
of  religion.  He  alone,  of  all  the  rational  creation,  they  seem  to 
think,  is  to  be  at  once  accountable  for  his  actions,  and  yet  his  ac- 
tions are  not  to  be  at  his  own  disposal  ;  but  his  mind,  his  body,  and 
his  feelings,  are  to  be  sold  to  perpetual  bondage.  To  me  it  appears 
perfectly  clear,  that  the  slave-trade  is  equally  repugnant  to  the 
dictates  of  reason  and  religion,  and  is  an  offence  equally  against  the 
laws  of  God  and  man.  Yet,  strange  to  tell,  one  of  the  pretences, 
upon  which  the  modern  slavery  of  the  Africans  has  been  justified, 
is  the  "  duty  of  converting  the  heathen." 

I  have  called  this  an  inhuman  traffic  ;  and,  Gentlemen,  with  a 
view  to  enlist  your  sympathies,  as  well  as  your  judgments,  in  its 
suppression,  permit  me  to  pass  from  these  cold  generalities,  to  some 
of  those  details,  which  are  the  ordinary  attendants  upon  this  trade. 
Here,  indeed,  there  is  no  room  for  the  play  of  imagination.  The 
records  of  the  British  Parliament  present  us  a  body  of  evidence  on 
this  subject,  taken  with  the  most  scrupulous  care,  while  the  subject 
of  the  abolition  was  before  it  ;  taken,  too,  from  persons,  who  had 
been  engaged  in,  or  eyewitnesses  of  the  trade  ;  taken,  too,  year 
after  year,  in  the  presence  of  those,  whose  interests  or  passions  were 
most  strenuously  engaged  to  oppose  it.  That  it  was  not  contra- 
dicted or  disproved  can  be  accounted  for  only  upon  the  ground, 
that  it  was  the  truth,  and  nothing  but  the  truth.  What,  therefore, 
I  shall  briefly  state  to  you  on  this  subject,  will  be  drawn  principally 
from  those  records ;  and  I  am  free  to  confess,  that,  great  as  was  my 
detestation  of  the  trade,  I  had  no  conception,  until  I  recently  read 


CHARGE    TO    THE    GRAND    JURY    AT    PORTLAND.  363 

an  abstract  of  this  evidence,  of  the  vast  extent  of  misery  and 
cruelty  occasioned  by  its  ravages.  And  if,  Gentlemen,  this  detail 
shall  awaken  your  minds  to  the  absolute  necessity  of  constant  vigi- 
lance in  the  enforcement  of  the  laws  on  this  subject,  we  may  hope, 
that  public  opinion,  following  these  laws,  will  very  soon  extirpate 
the  trade  among  our  citizens. 

The  number  of  slaves  taken  from  Africa  in  1768  amounted  to 
one  hundred  and  four  thousand  ;  and  though  the  numbers  some- 
what fluctuated  in  different  years  afterwards,  yet  it  is  in  the  highest 
degree  probable,  that  the  average,  until  the  abolition,  was  not  much 
below  one  hundred  thousand  a  year.  England  alone,  in  the  year 
1786,  employed  one  hundred  and  thirty  ships,  and  carried  off  about 
forty-two  thousand  slaves. 

The  unhappy  slaves  have  been  divided  into  seven  classes.  The 
most  considerable,  and  that  which  contains  at  least  half  of  the 
whole  number  transported,  consists  of  kidnapped  people.  This 
mode  of  procuring  them  includes  every  species  of  treachery  and 
knavery.  Husbands  are  stolen  from  their  wives,  children  from 
their  parents,  and  bosom-friends  from  each  other.  So  generally 
prevalent  are  these  robberies,  that  it  is  a  first  principle  of  the  na- 
tives not  to  go  unarmed,  while  a  slave-ship  is  on  the  coast,  for  fear 
of  being  stolen.  —  The  second  class  of  slaves,  and  that  not  incon- 
siderable, consists  of  those,  whose  villages  have  been  depopulated 
for  obtaining  them.  The  parties  employed  in  these  predatory 
expeditions  go  out  at  night,  set  fire  to  the  villages,  which  they  find, 
and  carry  off  the  wretched  inhabitants,  thus  suddenly  thrown  into 
their  power,  as  slaves.  The  practice  is,  indeed,  so  common,  that 
the  remains  of  deserted  and  burnt  villages  are  every  where  to  be 
seen  on  the  coast.  —  The  third  class  consists  of  such  persons  as  are 
said  to  have  been  convicted  of  crimes,  and  are  sold  on  this  account  for 
the  benefit  of  their  kings  ;  and  it  is  not  uncommon  to  impute  crimes 
to  them  falsely,  and  to  bring  on  mock  trials,  for  the  purpose  of 
bringing  them  within  the  reach  of  the  royal  traders.  —  The  fourth 
class  includes  prisoners  of  war,  captured  sometimes  in  ordinary  wars, 
and  sometimes  in  wars  originated  for  the  very  purposes  of  slavery. 
—  The  fifth  class  comprehends  those,  who  are  slaves  by  birth  ;  and 
some  traders  on  the  coast  make  a  practice  of  breeding  from  their 
own  slaves,  for  the  purpose  of  selling  them,  like  cattle,  when  they 
are  arrived  at  a  suitable  age.  —  The  sixth  class  comprehends  such 
as  have  sacrificed  their  liberty  to  the  spirit  of  gaming.  —  The  seventh 
and  last  class  consists  of  those,  who,  being  in  debt,  are  seized  ac- 


364  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

cording  to  the  laws  of  the  country,  and  sold  to  their  creditors. 
But  the  two  last  classes  are  very  inconsiderable,  and  scarcely  deserve 
mention. 

Having  lost  their  liberty  in  one  of  the  ways  already  mentioned, 
the  slaves  are  conveyed  to  the  hanks  of  the  rivers  or  seacoast. 
Some  belong  to  the  neighbourhood  :  others  have  lived  in  distant 
parts  ;  and  others  are  brought  a  thousand  miles  from  their  homes. 
Those,  who  come  from  a  distance,  march  in  droves  or  caufles,  as 
they  are  called.  They  arc  secured  from  rising  or  running  away  by 
pieces  of  wood,  which  attach  the  necks  of  two  and  two  together; 
or  by  other  pieces,  which  ait,*  fastened  by  staples  to  their  arms. 
They  are  made  to  carry  their  own  water  and  provisions;  and  are 
watched  and  followed  by  drivers,  who  by  force  compel  the  weak 
to  keep  up  with  the  strong. 

They  are  sold,  immediately  upon  their  arrival  on  the  rivers  or 
coasts,  either  to  land-factors,  at  depots  for  that  purpose,  or  directly 
to  the  ships  engaged  in  the  trade.  They  are  then  carried  in  boats 
to  the  various  ships,  whose  captains  have  purchased  them.  The 
men  are  immediately  confined  two  and  two  together,  either  by  the 
neck,  leg,  or  arm,  with  fetters  of  solid  iron.  They  are  then  put 
into  their  apartments,  the  men  occupying  the  forepart,  the  women 
the  afterpart,  and  the  boys  the  middle  of  the  vessel.  The  tops  of 
these  apartments  are  grated,  for  the  admission  of  light  and  air  ;  and 
the  slaves  are  stowed  like  any  other  lumber,  occupying  only  an 
allotted  portion  of  room.  Many  of  them,  while  the  ships  are  wait- 
ing for  their  full  lading  in  sight  of  their  native  shore,  manifest  great 
appearance  of  distress  and  oppression  ;  and  some  instances  have 
occurred,  where  they  have  sought  relief  by  suicide,  and  others, 
where  they  have  been  afflicted  with  delirium  and  madness.  In  the 
daytime,  if  the  weather  be  fine,  they  are  brought  upon  deck  for 
air.  They  are  placed  in  a  long  row  of  two  and  two  together,  on 
each  side  of  the  ship,  a  long  chain  is  then  made  to  pass  through 
the  shackles  of  each  pair,  and  by  this  means  each  row  is  secured, 
to  the  deck.  In  this  state  they  eat  their  miserable  meals,  consisting 
of  horseheans,  rice,  and  yams,  with  a  little  pepper  and  palm  oil. 
After  their  meals,  it  is  a  custom  to  make  them  jump  for  exercise 
as  high  as  their  fetters  will  allow  them  ;  and  if  they  refuse,  they  are 
whipped  until  they  comply.  This  the  slave-merchants  call  danc- 
ing, and  it  would  seem  literally  to  be  the  dance  of  death. 

When  the  number  of  slaves  is  completed,  the  ships  begin  what 
is  called  the  middle  passage,  to  transport  them  to  the  colonies.    The 


CHARGE    TO    THE    GRAND    JURY    AT    PORTLAND.  365 

height  of  the  apartments  in  the  ships  is  different,  according  to  the 
size  of  the  vessel,  and  is  from  six  feet  to  three  feet ;  so  that  it  is  im- 
possible to  stand  erect  in  most  of  the  vessels,  and  in  some  scarcely 
possible  to  sit  down  in  the  same  posture.  If  the  vessel  be  full,  the 
situation  of  the  slaves  is  truly  deplorable.  In  the  best  regulated 
ships,  a  grown  person  is  allowed  but  sixteen  inches  in  width,  thirty- 
two  inches  in  height,  and  five  feet  eleven  inches  in  length  ;  or,  to  use 
the  expressive  language  ol  a  witness,  not  so  much  room  as  a  man 
has  in  his  coffin.  They  are,  indeed,  so  crowded  below,  that  it  is 
almost  impossible  to  walk  through  the  groups,  without  treading  on 
some  of  thein  ;  and  if  they  are  reluctant  to  get  into  their  places, 
they  are  compelled  by  the  lash  of  a  whip.  And  here  their  situa- 
tion becomes  wretched  beyond  description.  The  space  between 
decks,  where  they  are  confined,  often  becomes  so  hot,  that  persons, 
who  have  visited  them  there,  have  found  their  shirts  so  wet  with 
perspiration,  that  water  might  be  wrung  from  them  ;  and  the  steam 
from  their  confined  bodies  comes  up  through  the  gratings  like  smoke 
from  a  furnace.  The  bad  effects  of  such  confinement  and  want  of 
air  are  soon  visible  in  the  weakness  and  faintness,  which  overcome 
the  unhappy  victims.  Some  go  down  apparently  well  at  night, 
and  are  found  dead  in  the  morning.  Some  faint  below,  and  die  from 
suffocation,  before  they  can  be  brought  upon  deck.  As  the  slaves, 
whether  well  or  ill,  always  lie  upon  bare  planks,  the  motion  of  the 
ship  rubs  the  flesh  from  the  prominent  parts  of  their  body,  and 
leaves  their  bones  almost  bare.  The  pestilential  breath  of  so  many, 
in  so  confined  a  state,  renders  them  also  very  sickly,  and  the  vicis- 
situdes of  heat  and  cold  generate  a  flux.  When  this  is  the  case, 
(which  happens  frequently,)  the  whole  place  becomes  covered  with 
blood  and  mucus,  like  a  slaughter-house  ;  and  as  the  slaves  are  fet- 
tered and  wedged  close  together,  the  utmost  disorder  arises  from 
endeavours  to  relieve  themselves  in  the  necessities  of  nature  ;  and 
the  disorder  is  still  further  increased  by  the  healthy  being  not  un fre- 
quently chained  to  the  diseased,  the  dying,  and  the  dead.  When 
the  scuttles  in  the  ship's  sides  are  shut  in  bad  weather,  the  grat- 
ings are  not  sufficient  for  airing  the  room  ;  and  the  slaves  are  then 
seen  drawing  their  breath  with  all  that  anxious  and  laborious  effort 
for  life,  which  we  observe  in  animals  subjected  to  experiments  in 
foul  air  or  in  an  exhausted  receiver  of  an  airpump.  Many  of  them 
expire  in  this  situation,  crying  out,  in  their  native  tongue,  "  We  are 
dying."  During  the  time,  that  elapses  from  the  slaves  being  put 
on  board  on  the  African  coast  to  their  sale  in   the   colonies,  about 


366  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

one  fourth  part,  or  twenty-live  thousand  per  annum,  are  destroyed  ; 
a  mortality,  which  may  be  easily  credited  after  the  preceding  state- 
ment. 

At  length  the  ship  arrives  at  her  destined  port,  and  the  unhappy 
Africans,  who  have  survived  the  voyage,  are  prepared  for  sale. 
Some  are  consigned  to  brokers,  who  sell  them  for  the  ships  at  pri- 
vate sale.  With  this  view,  they  are  examined  by  the  planters, 
who  want  them  for  their  farms  ;  and  in  the  selection  of  them,  friends 
and  relations  are  parted  without  any  hesitation  ;  and  when  they 
part  with  mutual  embraces,  they  are  severed  by  a  lash.  Others 
are  sold  at  public  auction,  and  become  the  property  of  the 
highest  bidder.  Others  are  sold  by  what  is  denominated  a  "  scram- 
ble." In  this  case  the  main  and  quarter  decks  of  the  ship  are 
darkened  by  sails  hung  over  them  at  a  convenient  height.  The 
slaves  are  then  brought  out  of  the  hold  and  made  to  stand  in  the 
darkened  area.  The  purchasers,  who  are  furnished  with  long  ropes, 
rush  at  a  given  signal  within  the  awning,  and  endeavour  to  encircle 
as  many  of  them  as  they  can.  Nothing  can  exceed  the  terror, 
which  the  wretched  Africans  exhibit  on  these  occasions.  A 
universal  shriek  is  immediately  heard  —  all  is  consternation  and 
dismay  —  the  men  tremble  —  the  women  cling  together  in  each 
other's  arms  —  some  of  them  faint  away,  and  others  are  known  to 
expire. 

About  twenty  thousand,  or  one  fifth  part  of  those,  who  are  annu- 
ally imported,  die  during  the  "  seasoning,"  which  seasoning  is  said 
to  expire,  when  the  two  first  years  of  servitude  are  completed  ;  so 
that  of  the  whole  number  about  one  half  perish  within  two  years 
from  their  first  captivity.  I  forbear  to  trace  the  subsequent  scenes 
of  their  miserable  lives,  — worn  out  in  toils,  from  which  they  can 
receive  no  profit,  and  oppressed  with  wrongs,  from  which  they  can 
hope  for  no  relief. 

The  scenes,  which  I  have  described,  are  almost  literally  copied 
from  the  most  authentic  and  unquestionable  narratives  published 
under  the  highest  authority.  They  present  a  picture  of  human 
wretchedness  and  human  depravity,  which  the  boldest  imagination 
would  hardly  have  dared  to  portray,  and  from  which  (one  should 
think)  the  most  abandoned  profligate  would  shrink  with  horror.  Let 
it  be  considered,  that  this  wretchedness  does  not  arise  from  the  awful 
visitations  of  Providence,  in  the  shape  of  plagues,  famines,  or  earth- 
quakes, the  natural  scourges  of  mankind  ;  but  is  inflicted  by  man 
on  man,  from  the  accursed  love  of  gold.     May  we  not  justly  dread 


CHARGE    TO    THE    GRAND    JURY    AT    PORTLAND.  367 

the  displeasure  of  that  Almighty  Being,  who  is  the  common  Father 
ol  us  all,  if  we  do  not  by  all  means  within  our  power  endeavour  to 
suppress  such  infamous  cruellies?  If  we  cannot,  like  the  good  Samar- 
itan, bind  up  the  wounds  and  soothe  the  miseries  of  the  friendless 
Africans,  let  us  not,  like  the  Levite,  pass  with  sullen  indifference  on 
the  other  side.  What  sight  can  be  more  acceptable  in  the  eyes  of 
Heaven  than  that  of  good  men  struggling  in  the  cause  of  oppressed 
humanity  ?  What  consolation  can  be  more  sweet  in  a  dying  hour, 
than  the  recollection,  that  at  least  one  human  being  may  have  been 
saved    from  sacrifice  by  our  vigilance  in  enforcing  the  laws? 

I  make  no  apology,  Gentlemen,  for  having  detained  you  so  Ion"- 
upon  this  interesting  subject.  In  vain  shall  we  expend  our  wealth 
in  missions  abroad  for  the  promotion  of  Christianity  ;  in  vain  shall 
we  rear  at  home  magnificent  temples  to  the  service  of  the  Most 
High.  If  we  tolerate  this  traffic,  our  charity  is  but  a  name,  and 
our  religion  little  more  than  a  faint  and  delusive  shadow. 


ARGUMENT 


DELIVERED  BEFORE  THE  BOAKD  OF  OVERSEERS  OF  HARVARD  COLLEGE, 
IN  JANUARY,  1825,  UPON  THE  DISCI  SSION  OF  THE  MEMORIAL  OF  THE 
PROFESSORS  AND  TUTORS  OF  THE  COLLEGE,  CLAIMING  A  RIGHT  THAT 
NONE  BUT  RESIDENT  INSTRUCTERS  tN  THE  COLLEGE  SHOULD  BE  CHOSEN 
OR   DEEMED   "FELLOWS"  OF   THE   CORPORATION. 


[First  published  in  the  American  Jurist,  April,  1829.] 

[It  will  be  at  once  perceived,  that  the  argument  is  strictly  con- 
fined to  the  mere  question  of  legal  right.  The  author,  in  opening 
his  speech,  expressly   disclaimed  any   intention   to  inquire  into  the 

*  Tire  following  statements,  on  the  subject  of  the  claim  of  the  resident  Instruc- 
ters,  are  chiefly  borrowed  from  a  pamphlet  published  in  1825,  entitled  "  Remarks 
on  Changes  lately  proposed  or  adopted  in  Harvard  University.  By  George  Tick- 
nor.  Smith  Professor,"  kc. 

"  The  management  of  the  College  at  Cambridge  has  been  heretofore  in  the 
hands  of  three  bodies  of  men,  who  hold  their  authority  under  an  Act  of  the  Gen- 
eral  Court,  passed  in  1642;  a  ('baiter  given  in  1650,  with  an  Appendix,  dated  in 
](jo";  the  fifth  chapter  of  the  Constitution  of  the  Commonwealth,  made  in  1780, 
and  revised,  but  not  altered  in  relation  to  the  College,  in  1S21  ;  and  an  Act  passed 
in  February,  1814,  by  the  Legislature  of  the  Commonwealth. 

"  The  first  of  the  bodies,  who,  under  the  provisions  of  these  acts,  or  by  powers 
mediately  derived  from  them,  have  had  the  management  of  the  College,  is,  the 
Faculty  or  Immediate  Government,  consisting  of  the  President,  and  a  part  of  the 
resident  [nstructers,  amounting  in  all  to  from  ten  to  thirteen  persons,  who  have 
the  entire  discipline  of  the  students  in  their  hands,  and  have  been  obliged  to  meet 
together  as  an  executn  e  bodj  .  to  decide  on  every  punishment  above  a  small  tine ; 
a  hody,  which,  both  in  Cambridge  and  in  other  Colleges,  is  too  large  for  the 
prompt,  consistent,  and  efficienl  discipline  of  such  a  collection  of  young  men. 

"Over  the  Faculty  is  the  Corporation,  which  derives  its  powers  from  the  Charter 
of  1650,  the  Appendix  of  1(157,  and  the  Constitution  of  1780,  and  consists  of  the 
President,  the  Treasurer,  and  five  •  Fellows,'  as  they  are  technically  called;  and 
of  the  gentlemen,  who  now  [1825]  compose  that  body,  three,  namely,  Mr.  W. 
Prescott,  Judge  Jackson,  and  the  Rev.  W.  E.  dimming,  reside  in  Boston;  one, 
.Mr.  Justice  Story,  resides  in  Salem  ;  and  one,  Rev.  E.  Porter,  resides  in  Roxbury. 


BEFORE    THE    OVERSEERS    OF     HARVARD     COLLEGE.  369 

expediency  of  such  a  choice,  supposing  it  not,  a  matter  of  right ; 
considering  that  to  he  a  topic  of  a  very  large  and  comprehensive 
nature,  and  that  no  case  was  then  before  the  Board,  which  required 
or  invited  such  a  discussion.] 


The  Corporation  have  the  management  of  the  funds  and  revenues  of  (he  College  ; 
appoint  its  instructers  and  other  officers,  and  assign  them  their  duties  and  pay ; 
make  laws  for  the  government  of  the  instructers  and  the  students;  and  fill  vacan- 
cies in  their  own  body;  but  are  restricted  in  their  powers,  and  can  do  almost 
nothing  without  the  expressed  assent  of  the  Overseers. 

';  The  Overseers  are  the  last  and  highest  body  for  the  government  of  the  Col- 
lege. They  hold  their  power  by  virtue  of  the  Act  of  1642,  the  Constitution  of 
1780,  and  the  Statutes  of  1810  [&.]  1814,  and  consist  of  the  Governor  of  the  Com- 
monwealth,  the  Lieutenant  Governor,  the  Council,  the  Senate,  *  *  and  the 
Speaker  of  the  House  of  Representatives  ;  in  all  fifty-three  persons  ;  together 
with  the  President  of  the  College,  and  fifteen  laymen  and  fifteen  clergymen, 
elected,  and  to  be  elected,  from  the  community  at  large,  by  the  whole  Board  ;  so 
that  out  of  eighty-four  members  of  the  upper  Board  for  the  government  of  the 
College,  fifty-three  are  annually  elected  by  the  people,  and,  therefore,  completely 
and  truly  represent  the  public  interest  in  the  institution."  *  *     *     *      •     *     * 

"  On  the  2d  of  April,  1824,  eleven  of  the  resident  teachers,  namely,  five  Pro- 
fessors engaged  in  the  instruction  of  undergraduates,  two  engaged  in  the  instruc- 
tion of  graduates,  and  four  Tutors,  offered  a  memorial  to  the  Corporation,"  contain- 
ing certain  '  statements  and  considerations  relative  to  the  mode,  in  which,  according 
to  the  charter  of  the  institution,  the  Corporation  of  the  same  ought  of  right  to 
We  constituted,'  (Memorial,  p.  1.)  and  preferring  to  the  Corporation  as  'matter 
of  chartered  right,'  '•  the  claim  of  the  resident  Instructers  to  be  elected  to  vacan- 
cies in  the  Board  of  the  President  and  Fellows.'      (Mem.  p.  31.) 

"  To  this  memorial  the  Corporation  returned  no  formal  answer,  on  the  ground, 
as  has  been  stated  by  the  memorialists,  that,  if  the  claim  were  well  founded,  the 
members  of  the  Corporation,  to  whom  it  was  sent,  not  being  rightfully  '  Fellows' 
of  the  College,  were  not  competent  to  perform  any  act  in  its  government ;  and 
could  only  resign  their  seats.  On  the  1st  of  June,  nine  of  the  same  memorialists 
presented  the  same  claim  and  memorial  to  the  Overseers  ;  giving,  as  one  reason  for 
presenting  it  at  that  particular  juncture,  that  they  understood  the  Overseers  were 
then  engaged  in  considering  important  measures  relative  to  the  organization  of 
the  College.  This  memorial  was  by  the  Overseers  referred  to  a  committee,  and 
so  the  matter  rested  for  some  months."  — Remarks,  pp.  11,  12,  13. 

"  After  this  memorial  had  been  presented  to  the  Overseers,  a  report  on  it  was 
made,  January  6,  1S25,  by  Mr.  Hill,  of  the  Council,  on  behalf  of  the  committee 
appointed  to  consider  the  subject,  in  which  report  it  is  maintained,  that  it  is  not 
necessary,  by  the  charter  or  otherwise,  that  the  Fellows  of  Harvard  College  be 
either  resident  in  Cambridge,  Instructers,  or  Stipendiaries.  The  memorialists 
desired  to  be  heard  in  reply.  They  were  so  heard  on  the  4th  of  February  ;  Pro- 
fessor Everett  and  Professor  Norton  appearing  on  their  behalf.  The  discussion 
was  very  interesting,  and  one  of  the  most  thorough  ever  witnessed  among  us.  It 
lasted  three  days.  At  the  end  of  this  time,  the  following  resolutions  were  unani- 
mously adopted,  at  a  remarkably  full  meeting  of  the  Overseers:  '  Resolved,  that 
it  does  not  appear  to  this  Board,  that  the  resident  Instructers  in  Harvard  University 
have  any  exclusive  light  to  he  elected  members  of  the  Corporation.  Resolved, 
that  it  does  not  appear  to  the  members  of  this  Board,  that  the  members  of  the 
Corporation  forfeit  their  offices  by  not  residing  at  College.' 

47 


370  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

1  regret  that  I  am  compelled,  by  a  sense  of  duty,  to  enter  upon 
the  discussion  of  the  question  presented  by  the  Memorial,  at  the 
distance  of  more  than  a  century  and  a  half  after  the  foundation 
and  charter  of  the  college.     1  entertain  a   very  great  respect  for 


"  It  may  be  added  to  tins,  that,  as  a  legal  question,  few  have  ever  been  exam- 
ined among  us  with  more  laborious  care,  or  by  persons  better  qualified  to  decide 
what  is  the  law.  In  the  Corporation,  at  the  time,  were  Mr.  W.  Prescott,  Mr. 
H.  G.  Otis,  and  Mr.  J.  Davis,  District  Judge  oi'  the  United  States.  Jn  the  Hoard 
of  Overseers,  Mr.  Justice  Story,  of  the  Supreme  Court  of  the  United  States, 
delivered  his  opinion  against  the  memorial  in  a  long  argument.  He  was  >ueceeded, 
on  the  same  side,  by  Chief  Justice  Parker,  of  the  Supreme  Court  of  Massachu- 
setts, Mr.  Justice  Jackson,  Mr.  F.  C.Gray,  and  some  other  persons  of  distinguished 
talent.  On  the  final  question,  not  a  voice  was  raised  in  the  Board,  or  elsewhere, 
I  believe,  in  favor  of  the  memorial.  The  profession,  in  particular,  seemed  unani- 
mous on  all  the  points;  and  many  years  will  probably  elapse  before  any  important 
question  will  be  decided  with  such  a  great  weight  of  legal  talent  and  learning, 
after  so  long,  so  patient,  and  so  interesting  a  discussion."  —  Remarks,  pp.  2-").  26. 

"  The  charter  of  1650,  under  which  chiefly  the  Corporation  hold  their  powers, 
and  the  memorialists  make  their  claim,"  (Remarks,  p.  13.)  commences  as  follows  : — 

"  Whereas,  through  the  good  hand  of  God,  many  well  devoted  persons  have 
been,  and  daily  are,  moved  and  stirred  up,  to  give  and  bestow  sundry  gifts,  lega- 
cies, lands,  and  revenues,  for  the  advancement  of  all  good  literature,  arts,  and 
sciences,  in  Harvard  College,  in  Cambridge,  in  the  County  of  Middlesex,  and  to 
the  maintenance  of  the  President  and  Fellows,  and  for  all  accommodations  of 
buildings,  and  all  other  neeessu-y  provisions,  that  may  conduce  to  the  education  of 
the  English  and  Indian  youth  of  this  country,  in  knowledge  and  godliness; 

"  It  is  therefore  ordered  and  enacted  by  this  Court,  and  the  authority  there- 
of, for  the  furthering  of  so  good  a  work,  and  for  the  purpose  aforesaid,  from 
henceforth,  that  the  said  College  in  Cambridge,  in  Middlesex,  in  New  England, 
shall  be  a  Corporation,  consisting  of  seven  persons,  namely,  a  President,  five 
Fellows,  and  a  Treasurer  or  Bursar ;  and  that  Henry  Dunster  shall  be  the  fust 
President,  Samuel  Mather,  Samuel  Danford,  Masters  of  Arts,  Jonathan  Mitchell, 
Comfort  Starr,  and  Samuel  Eaton,  shall  be  the  five  Fellows,  and  Thomas  Danford 
to  be  present  Treasurer,  all  of  them  being  inhabitants  in  the  Bay,  and  shall  he  the 
first  seven  persons,  of  which  the  said  Corporation  shall  consist  ;  and  that  the  -..id 
seven  persons,  or  the  greater  number  of  them,  procuring  the  presence  of  the  Over- 
seers [rendered  unnecessary  by  the  Appendix  of  1657]  of  the  College,  and  by 
their  counsel  and  consent,  shall  have  power,  and  are  hereby  authorized,  at  any 
time  or  times,  to  elect  a  new  President,  Fellows,  or  Treasurer,  so  oil,  and  from  time 
to  time,  as  any  of  the  said  persons  shall  die  or  be  removed  ;  which  said  President 
and  Fellows,  for  the  time  being,  shall  for  ever  hereafter,  ia  name  and  in  fact,  be 
one  body  politic  and  corporate  in  law,  to  all  intents  and  purposes;  and  shall  have 
perpetual  succession  ;  and  shall  be  called  by  the  name  of  the  President  and  Fel- 
lows of  Harvard  College,  and  shall  from  time  to  time  be  eligible  as  aforesaid."  — 
Mass.  Col.  Laws,  Sfc,  78,  79. 

Besides  the  Memorial,  and  the  Remarks  of  Mi*.  Ticknor,  several  other  pamphlets 
have  been  published  iii  relation  to  the  claim  of  the  resident  Instructers,  namely, 
"  Remarks  on  a  Pamphlet  printed  by  the  Professors  and  Tutors  of  Harvard  Uni- 
\  i  rsitj  .  touching  their  Right  to  the  exclusive  Government  of  that  Seminary."  "A 
Letter  to  John  Lowell,  Esq.,  in  Reply  to  a  Publication  entitled,  Remarks  on  a  Pam- 
phlet," &.c.     This  Letter  is  from  the  Hon.  Edward  Everett,  then  a  Professor  in  the 


BEFORE    THE    OVERSEERS    OF    HARVARD    COLLEGE.  371 

the  memorialists.  Some  of  them  were  the  instructors  of  my  youth, 
while  I  was  a  student  at  the  University,  and  for  them  I  feel  much 
of  filial  reverence  ;  others  of  them  I  have  the  pleasure  of  being 
well  acquainted  with  by  their  literary  and  scientific  acquirements  ; 
and  others  of  them  J  feel  myself  at  liberty  to  name  among  the 
friends,  whom  I  most  honor.  Under  such  circumstances,  I  should 
be  glad,  if  I  could,  to  escape  from  the  embarrassment  and  respon- 
sibility of  a  public  discussion,  in  which  my  judgment  requires  me  to 
dissent  from  claims,  which,  whatever  may  be  my  personal  respect 
for  the  memorialists,  I  am  convinced  are  utterly  unfounded  in  law. 

Considerations  of  this  nature  have  pressed  upon  my  feelings ; 
but  I  have  yielded  them  up  to  a  sense  of  duty.  This  Board  has 
a  right  to  demand  from  the  members  of  it,  who  have  been  bred  to 
the  profession  of  the  law,  a  clear  view  of  their  own  opinions  upon 
the  question,  as  a  matter  of  law ;  and  the  suggestion  of  my  friends 
have  led  me  to  believe,  that,  upon  such  an  occasion,  silence  on  my 
part  would  not  be  deemed  excusable. 

But  there  is  another  matter  of  regret,  which  I  am  bound  to 
acknowledge,  and  which,  I  trust,  will  be  accepted  as  an  apology 
for  any  imperfections  and  infirmities  in  my  argument.  The  ques- 
tion is  one  quite  remote  from  the  ordinary  occupations  and  studies 
of  lawyers  in  this  country.  It  has  not,  as  far  as  I  know,  been 
stirred  here  for  a  century ;  and,  unfortunately,  little  or  nothing  of 
the  grounds  of  the  opinions  and  reasonings  of  that  distant  period 
can  be  now  gathered  up  to  aid  or  enlighten  the  present  inquiry. 
It  would  have  been  desirable,  on  my  own  part,  to  have  consulted, 
at  large,  the  charters,  foundations,  and  statutes  of  the  colleges  in 
the  English  Universities  ;  and  to  have  fortified  myself  by  an  inti- 
mate study  of  all  the  peculiarities,  as  well  of  their  language  and 
legal  construction,  as  of  the  usages  under  them,  so  that  I  might  have 
been  better  prepared  to  meet  any  objections.  But  the  best  works  on 
such  subjects  are  not  generally  within  my  reach,  or  within  that  of 
my  friends.  I  am  obliged,  therefore,  to  rely  upon  books  and  au- 
thorities, which,  though  perfectly  satisfactory  upon  the  leading 
principles,  are  less  full  and  exact  in  details  than  I  could  have 
wished.  I  have,  in  some  instances,  been  obliged  to  gather  up 
fragments  of  facts,  and   put  them   together,   in   order  to  illustrate 

College.  "  Speech  delivered  before  the  Overseers  of  Harvard  College,  February  3, 
1825,  in  behalf  of  the  Resident  Instructors  of  the  College  ;  with  an  Introduction. 
By  Andrews  Norton."  "  Report  of  a  Committee  of  the  Overseers  of  Harvard 
College,  on  the  Memorial  of  the  Resident  Instructors."    Editok  Am.  Jurist. 


372  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

positions,  which  appear  to  me,  in  a  legal  view,  absolutely  irresistible. 
Few  controversies  of  a  nature  like  the  present  have  ever  come 
before  the  English  courts  of  justice  ;  and  where  they  have  been 
settled  by  the  visiters  of  a  college,  or  their  assessors,  upon  legal 
principles,  they  are  either  locked  up  in  works  not  generally  acces- 
sible, or  left  merely  upon  the  manuscript  records  of  the  colleges, 
to  which  we  have  no  access. 

Notwithstanding  these  disadvantages,  I  have  an  entire  confidence, 
that  the  conclusions,  to  which  I  have  arrived,  are  perfectly  well 
founded  in  point  of  law.  They  rest  upon  principles,  which,  as  a 
lawyer,  I  think  either  do  not  admit  of  serious  controversy,  or,  if 
controverted,  can  be  satisfactorily  maintained.  And  I  trust,  in 
many  instances,  1  shall  be  able  to  establish  by  suitable  illustrations, 
that  they  are  justified  by  the  highest  authority. 

I  will  now,  after  these  prefatory  remarks,  beg  the  indulgence 
of  the  Board,  while  I  invite  their  attention,  and  particularly  that 
of  my  legal  friends,  who  are  members  of  it,  to  my  argument. 
Some  of  its  details  may  be  dry  and  uninteresting  ;  some  of  them 
may  be  thought  superfluous  ;  and  some  of  them,  such  as  lawyers, 
at  the  first  presentation  of  them,  would  not  deem  necessary  to  be 
farther  expounded.  My  excuse  must  be  sought  in  the  great  defer- 
ence I  feel  for  the  memorialists  themselves.  I  am  unwilling  to 
have  it  thought,  for  a  moment,  that  any  thing,  which  they  deem 
in  any  degree  important,  as  bearing  upon  their  case,  should  not  be 
met  and  answered  with  directness  and  in  a  spirit  of  candor,  what- 
ever may  be  the  value,  which  others  may  attribute  to  it. 

I  shall  have  occasion,  in  the  course  of  the  discussion,  to  allude 
to  a  pamphlet  containing  a  vindication  of  the  doctrines  of  the 
Memorial,  which  has  been  attributed  to  one  of  the  learned  profes- 
sors, and  which  I  shall  the  more  freely  allude  to,  because  it  pur- 
ports to  invite  public  discussion,  and  its  authorship  is  not  attempted 
to  be  concealed.  In  so  doing,  I  trust  I  shall  not  be  suspected  of 
feeling  towards  the  learned  author  any  thing  but  respect  and 
friendship. 

The  object  of  the  Memorial  is  to  show,  that  the  Corporation  of 
Harvard  College,  as  at  present  organized,  is  not  conformable  to  the 
charter  of  1650.  The  proposition  maintained  is,  that,  by  "  Fel- 
lows," in  the  charter,  is  meant  a  particular  description  of  persons, 
known  in  English  colleges,  and,  at  the  time  of  the  charter,  existing 
in  Harvard  College,  and  having  known  rights  and  duties.  The  Me- 
morial then  asserts,  and  endeavours  to  prove,  that "  Fellow"  imports 


BEFORE  THE  OVERSEERS  OF  HARVARD  COLLEGE.     373 

a  person  resident  at  the  college,  and  actually  engaged  there  in 
carrying  on  the  duties  of  instruction  or  government,  and  receiving 
a  stipend  from  its  revenues."*  In  the  view  of  the  Memorial,  each 
of  these  facts,  residence,  instruction  as  government,  and  receiving  a 
stipi  iid,  constitutes  a  necessary  part  of  the  definition  of  a  "  Fellow." 
And  it  is  contended  hy  the  memorialists,  that  this  is  the  meaning 
attached  to  the  word  in  the  charters  of  the  English  colleges  ;  that 
it  was  so  actually  applied  in  Harvard  College  before  1650  ;  and  that, 
consequently,  it  is  the  true  and  only  sense  of  the  term  in  the  charter 
of  1650.  The  Memorial  seems  to  maintain,  that  no  persons,  but 
such  as  have  the  necessary  qualifications  at  the  time  of  the  choice, 
are  eligible  as  Fellows. f  But  if  it  does  not  go  to  this  extent,  it 
maintains,  that,  after  the  choice,  the  party  must  be  a  resident,  an 
instructer  or  governor,  and  a  stipendiary. 

My  first  object  will  be  to  ascertain,  whether  the  above  definition 
of  "  Fellow  "  be  true  and  correct,  as  applied  to  English  colleges  ;  for 
on  this  definition  the  whole  argument  rests.  I  shall  contend,  and 
endeavour  to  show:  1.  That  the  term,  "Fellow,"  when  used  in 
the  charters  of  English  colleges,  has  no  peculiar  meaning,  distinct 
from  its  ordinary  meaning  of  associate  or  socius :  2.  That  the 
qualifications  of  Fellows  are  not  the  same  in  all  the  colleges  ;  but 
vary  according  to  the  requisitions  of  the  charters,  and  the  succes- 
sive statutes  of  the  particular  foundations :  3.  That,  as  an  enume- 
ration of  the  particular  qualifications  of  Fellows  in  the  colleges 
generally,  the  above  definition  is  incomplete :  4.  That  the  objects 
of  these  Fellowships  are  very  various  ;  and  generally,  if  not  uni- 
versally, of  a  nature  wholly  distinct  from  any,  which  the  Memorial 
itself  supposes  to  be  the  principal  object  of  the  charter. 

I.  The  meaning  of  the  word,  "  Fellow."  —  This  word  is  by 
no  means  confined  to  college  charters.  It  occurs  in  charters  of  a 
very  different  description.  Thus  the  Royal  Society  is  incorpo- 
rated by  the  name  of  the  "  President  and  Fellows."  So  the 
College  of  Physicians.  So  the  American  Academy  of  Arts  and 
Sciences.  So  the  Medical  Society  of  Massachusetts.  In  these 
and  like  cases,  no  person  supposes,  that  the  word  imports  any  thing 
more  than  member  or  associate.  Johnson,  among  his  definitions  of 
"  Fellow,"  enumerates  as  one,  "  a  member  of  a  college,  that  shares 
its  revenues,  or  of  any  incorporated  society."  We  also  speak  of 
the  Chief  Justice    of  a  court  and   his  Fellows ;    of  the  Foreman 

*  Page  2.  t  Pages  2,  4,  7,  30. 


374  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

of  the  Grand  Jury  and  his  Fellows.  The  oath  of  the  Grand  Jury 
declares,  "  The  United  States'  counsel,  your  Fellows',  and  your 
own,  you  shall  keep  secret." 

In  all  these  cases,  the  word  companion,  associate,  or  confrere, 
might  he  substituted  indifferently  for  Fellow.  If  there  be  any 
peculiar  force  in  the  term,  it  is,  that  it  imports  equality  in  general 
rights.  Why,  then,  should  it  be  supposed  to  be  used  in  any  other 
sense  in  a  college  charter  ?  It  cannot  be  from  the  nature  of  the 
objects  to  be  attained,  for  these  might  be  attained  by  persons  under 
any  other  denomination  ;  nor  from  any  peculiar  structure  of  col- 
lege institutions,  for  these  exist  under  very  various  charters  at  home 
and  abroad.  The  corporate  name  of  Dartmouth  College  is, 
"  The  Trustees  of  Dartmouth  College."  The  ends  can  be  obtained 
as  well  without  Fellows,  as  with  ;  as  well  by  incorporating  a  dis- 
tinct body,  as  by  incorporating  the  college  instructers.  Many  of 
the  trustees  of  Dartmouth  College,  in  the  original  charter,  were 
non-residents,  and  so  described  in  the  charter.  Many,  who  have 
been  since  elected,  were  non-residents,  and  continued  such. 

The  sole  ground  of  the  memorialists  must  be,  that  the  word 
has  a  fixed  meaning  as  to  English  colleges ;  and  is,  as  it  were,  so 
appropriated  by  art,  as  necessarily  to  import  in  a  college  charter 
something  more  than  associate.  If  so,  then  the  word  would  natu- 
rally be  used  in  all  English  college  charters  ;  and  "  Fellows " 
could  not  exist,  where  the  charter  did  not  create  them  eo  nomine. 
But  how  is  the  fact?    Let  us  take  a  few  of  the  colleges  at  Oxford. 

Brazen  Nose  College  ;  founded  in  1509.  Name  —  "  Principal 
and  Scholars  of  King's  Hall  and  Brazen  Nose  College  in  Ox- 
ford." *  Yet  there  are  in  this  college  twenty  fellows,  thirty-two 
scholarships,  and  fifteen  exhibitions,  on  the  foundation. 

Trinity  College  ;  founded  in  1554,  by  name  of  the  "  Master, 
Ft  llmrs,  and  Scholars  of  the  College,"  &c.  &c.f  There  are  on 
the  foundation,  a  president,  twelve  fellows,  twelve  scholars,  and 
four  exhibitions. 

St.  John's  College;  founded  in  1557.  The  charter  is  for  a 
president,  and  fifty  fellows  or  scholars.% 

Christ  Church  College  ;  founded  by  Cardinal  Wolsey  and  Henry 
VIII. j  1 532  :  a  collegiate  church.    Name  —  "  Dean  and  Chapter  of 


*  Oxford  Guide,  ed.  1822,  p.  67. 

t  Oxf.  Guide,  1 1!».     2  Bro.  Pur.  Cas.  221.     1  Ayliffe,  Hist.  Oxf.  40. 

t  1  Ayl.  418,  419. 


BEFORE    THE    OVERSEERS    OF    HARVARD    COLLEGE.  375 

the  Cathedral  Church,  &c.  in  Oxford,"  &c*  On  the  foundation  are 
the  dean,  eight  canons,  eight  chaplains,  one  organist,  eight  clerks, 
one  hundred  and  one  students,  and  a  schoolmaster,  and  usher. 
This  is  a  very  material  case.  No  Fellows  are  named.  What  says 
the  Oxford  Guide  ?  In  college  phrase,  "  A  student  is  one  of  the 
one  hundred  and  one  members  of  that  name  at  Christ  Church, 
whose  rank  is  similar  to  that  of  '  Fellow '  of  other  colleges." 
"  The  number  of  members  on  the  books  is  about  seven  hundred, 
amongst  whom  are  three  hundred  and  forty-Jive  members  of  con- 
vocation." f  This  college  is  governed  solely  by  the  laws  of  the 
Dean  and  Chapter  of  the  Cathedral  Church.  J 

Corpus  Christi  College  ;  founded  1516.  Name  —  "Collegium 
Corpus  Christi  Oxonii."  It  originally  had  on  its  foundation  a  presi- 
dent, twenty  scholars,  and  two  chaplains  :  it  now  has  a  president, 
twelve  fellows,  twenty  scholars,  four  exhibitions,  two  chaplains. <§» 

Merton  College  ;  founded  1274.  Its  name  originally,  "  Custos  et 
Scholares  Domus  de  Merton  ;  "  ||  and  also,  "  Guardiani  et  Schola- 
rium  Domus,  sive  Collegii  Scholarium  de  Merton  in  Universitate 
Oxonii."  11  The  old  colleges  sometimes  used  more  than  one  name. 
This  college  has  now  a  warden,  twenty-four  fellows,  fourteen 
postmasters  (postrinistae),  four  scholars,  two  chaplains,  two  clerks. 

Peter  House  College,  founded  Cambridge ;  1284.  Name  —  "  The 
scholars  of  the  Bishop  of  Ely."  "  The  number  of  persons  on  the 
foundation,  being  the  number  mentioned  in  the  statutes,  consisted 
of  a  master  and  fourteen  fellows,  sometimes  called  perpetual 
scholars,  eight  poor  scholars,  and  two  bibliotists.  There  had  been 
other  fellowships  and  scholarships  annexed  at  different  times  and 
by  different  benefactors  ;  but  these  had  never  been  considered  as 
conferring  on  those,  who  held  them,  any  privileges  as  members  of 
the  society."**  The  statutes  given  by  Simon  de  Montacute,  Bishop 
of  Ely,  1344,  are  addressed  "  Magistro  et  Scholaribus  domus  nos- 
tra Sancti  Petri.  Cantab." ;  and  he  directs  that  these  fourteen 
"  Scholares  essent  perpctui  et  studiosi,"  fceff  The  statutes  con- 
stantly designate  what  are  now  called  "Fellows"  as  scholares. XX 

From  these  citations  it  is  apparent,  that  there  is  nothing  technical 
in  the  word  "  Fellow,"  as  applied  to  colleges  ;  that  it  is  sometimes 
not  found  in  the  words  of  the  charters,   and  yet  exists  in  the  foun- 

*  2  Ayl.  47.     Oxf.  Guide,  159.  t  Page  ISO-  179  J  1  Ayl.  246. 

§  1  Ayl.  394.     Oxf.  Guide,  169.  ||  1  Ayl.  273,  275.  1   2  Ayl. 

**  Rex  v.  Bishop  of  Ely,  2  T.  R.  290,  291.    "  \ !   Id.  29G. 
U  Id.  299,302-305. 


376  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

dation  ;  that  it  is  sometimes  used  as  synonymous  with  student 
(student),  sometimes  with  scholar  (scholaris)  ;  while  at  other  times 
it  imports  something  different,  depending  upon  the  usages  and  stat- 
utes of  the  foundation. 

Mr.  Kyd  views  the  word  exactly  in  this  light.  He  says,  "  In 
the  colleges  of  the  Universities,  there  are  in  general,  beside  the 
head  of  the  college,*  two  classes,  the  scholars  and  the  fellows, 
each  class  having  some  rights  and  privileges  distinct  from  the  other ; 
and  where  there  are  either  only  scholars  or  only  fellows,  or  where 
the  terms  scholars  and  fellows  are  synonymous,  which  is  sometimes 
the  case,  there  is  generally  a  distinction  between  junior  and  senior 
fellows,  and  junior  and  senior  scholars.  Independent  members, 
usually  called  'fellow-commoners?  are  mere  boarders,  and  have 
no  corporate  rights.''! 

In  corroboration  of  these  remarks,  I  may  add,  that  the  Univer- 
sities both  of  Oxford  and  Cambridge,  which  embrace  all  the  colle- 
ges, and  in  convocation  all  the  members  of  the  government  of  the 
respective  colleges,  are  incorporated  by  the  name  of  "  The  Chan- 
cellor, Masters,  and  Scholars  of  the  University  "  of  Oxford  and 
Cambridge,  respectively.  % 

We  may  deceive  ourselves  by  affixing  to  the  words  used  in 
English  colleges  the  sense,  in  which  we  are  accustomed  to  use  them. 
Thus,  scholar  with  us  means  an  undergraduate,  who  is  taught ;  so 
does  student.  But  in  Oxford,  "  scholars"  in  some  few  colleges,  are 
probationary  fellows ;  in  others,  they  are  mere  beneficiaries,  having 
an  annual  sum  allowed  towards  their  education.  The  Oxford 
Guide  says,  (p.  180,)  "  Strangers  are  often  perplexed  with  the 
terms  scholar  and  student,  and  sometimes  apply  them  indiscrimi- 
nately to  all  numbers  of  the  University.  By  a  scholar  of  a  college 
is  meant  the  person  who  holds  the  rank  above  mentioned,  and  that 
of  a  student  is  one  of  the  one  hundred  and  one  members  of  that 
name  at  Christ  Church,  whose  rank  is  similar  to  that  of  fellow  of 
other  colleges."  It  is  plain,  therefore,  that  scholar  and  student  do 
not  import  there,  as  with  us,  all  undergraduates,  who  resort  there 
for  education  ;  but  fellows  and  scholars  on  the  foundation. 

From  the  facts,  which  I  have  stated,  I  derive  the  conclusion,  that, 
for  all  the  purposes  of  a  college  charter,  the  terms  Fellow,  Scholar, 
Socius,  Associate,  Student,  may  be  used,  nay,  are  used,  to  indicate 

*  The  head  has  different  name*  in  different  colleges  —  Dean,  Rector,  Provost, 
Warden,  President,  Master,  Principal. —  Oxf.  Guide,  179. 

t    1  Kyd.  Corp.  329,330.        |  Stat.  13  Eliz.  Prynne,  Animad.  156;  1  Ayl.  197 


BEFORE    THE    OVERSEERS    OF    HARVARD    COLLEGE.  377 

the  same  general  tiling  ;  and  that  the  rights  depend,  not  on  the 
name,  but  singly  and  solely  on  the  government  provided  by  the 
charter,  and  by  the  statutes  of  the  foundation.  If  so,  the  term 
"  Fellow  "  imports  no  more  in  a  college  charter,  than  in  any  other 
act  of  incorporation.  This,  however,  will  be  more  clear,  as  we 
advance  in  our  discussion  of  some  other  points.  Lord  Mansfield, 
in  Rex  v.  Dr.  Askew,  4  Burr.  2195,  says,  "I  consider  the  words, 
Socii,  Communitas,  Collegium,  Societas,  Collega,  and  Fellows,  as 
synonymous  ;  and  every  socius  or  collega  as  a  member  of  the 
society,  or  corporation,  or  college."  So  Plowden  says,  (p.  103,) 
Master  and  Fellows  "  is  the  usual  recital  of  a  corporation."  The 
case  turned  on  the  point. 

II.  The  qualifications  of  Fellows  are  not  the  same  in  all  the 
colleges,  but  vary,  being  entirely  governed  by  the  charter  and 
statutes  of  the  foundation. 

The  Oxford  Guide  says,  (p.  180,)  "  The  qualifications  for  fellow- 
ships vary  in  almost  every  society.  The  Fellows  are,  according  to 
the  statutes  of  the  college,  elected  from  certain  public  schools,  and 
admitted  on  their  arrival  in  Oxford  ;  or  they  are  young  men,  who, 
having  studied  and  distinguished  themselves  in  other  colleges,  offer 
themselves  as  candidates,  and  are  selected  by  the  votes  of  the 
Fellows.  In  some  societies  they  are  confined  to  the  natives  of  par- 
ticular counties,  or  elected  from  the  scholars  ;  and  in  others  the 
kindred  of  the  founder  have  peculiar  privileges."  It  adds,  (p.  180,) 
"  The  Fellows,  in  conjunction  with  the  head  of  the  college,  are, 
in  all  cases,  the  directors  of  the  internal  regulations  of  their  society, 
and  the  managers  of  its  property  and  estates."  In  this  passage 
there  is  a  slight  mistake  ;  it  should  be,  in  most  cases. 

Thus,  in  All-Souls  College,  Oxford,  founded  in  1437.  The  col- 
lege is  composed  of  a  warden  and  forty  fellows,  two  chaplains,  six 
clerks,  of  kin  to  the  founder,  or,  born  in  the  province  of  Can- 
terbury.*—  New  College,  founded  in  1379.  The  foundation  is 
seventy  fellows  from  Winchester  College,  ten  chaplains,  &ic.f  — 
Wadham  College,  founded  in  1613.  The  fellows  are  chosen  from 
the  scholars  of  the  college.  J  —  Corpus-Christi  College.  The  fel- 
lowships must  be  distributed  among  natives  of  different  counties. <§> 
So,  the  Bishop  of  Durham  in  1403  gave  a  manor  to  University  Col- 
lege, for  the  maintenance  of  three  fellows  born  in  York  or  Dur- 
ham, without  respect  to  degrees,  and  though  undergraduates.  || 

*  Oxf.  Guide,  p.  58.  t  Id.  95.  {  Id   101. 

§   1  Ayl.  394.  ||  Id.  152. 

48 


378  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

It  is  remarkable,  that  in  no  instance  is  pr<  vious  residence  required, 
as  a  distinct  qualification  ;  though  in  some  instances  it  may  be 
inferred,  in  connexion  a\ it h  other  qualifications;  as  where  the  quali- 
fication is,  that  the  party,  to  be  a  Fellow,  must  be  elected  from  the 
scholars  of  the  same  college.  There  are  many  other  qualifications 
and  limitations  as  to  Fellows.  These  will  more  properly  fall  under 
the  subsequent  heads. 

III.  The  enumeration  of  qualifications  in  the  Memorial  is  incor- 
rect and  incomplete.  It  refers  to  three  things,  as  constituting  ne- 
cessary qualifications,  viz.,  Residence,  Instruction,  and  Government, 
in  the  college. 

1.  As  to  Residence. — 'This  is  often  required  ;  not  by  the  terms 
of  the  charter;  not  ex  vi  termini  Fellow  ;  but  from  the  statutes  of 
the  foundation. 

But  residence  is  not  universally  required.  This  may  be  inferred 
from  several  authorities.  Thus,  in  Ilex  v.  Grundon,*  where  a  fel- 
low-commoner was  excluded  from  the  college  gardens  of  Queen's 
College,  Cambridge,  on  an  indictment,  one  question  was,  whether 
he  was  legally  expelled,  it  having  been  done  by  the  Master  and 
less  than  a  majority  of  the  Fellows.  The  statute  was,  that  it  should 
be  done,  "  de  consensu  Presidents  et  majoris  partis  sociorum."  It 
was  said,  that  this  had  already  been  considered  in  construction,  as 
meaning,  of  the  Fellows  resident  in  the  college. f  Lord  Mansfield 
and  the  Court  thought  the  construction  right.  Now,  the  question 
could  not  have  arisen,  if  there  had  not  been  non-resident  Fellows. 

So  Dr.  Radcliffe's  foundation  in  University  College. %  It  is  ex- 
pressly for  the  support  of  two  persons,  elected  out  of  the  physic 
line,  for  their  maintenance  for  ten  years  in  the  study  of  physic,  and 
to  travel  half  the  time.  Lord  Hardwicke  considered  these  as  Fel- 
lows and  members  of  the  college,  though  not  required  to  be  resi- 
dents. 

But  what  is  decisive,  as  coining  from  the  highest  authority,  is 
what  Lord  Camden  says,  in  Hayes  v.  Long.§  It  was  a  case  against 
a  non-resident  Fellow  of  Christ  Church  College.  It  is  to  be  re- 
membered, that  there  are  no  Fellows,  eo  nomine,  in  that  college; 
but  they  are  called  Students.  The  University  of  Oxford  claimed 
cognizance  of  the  law  under  its  charter.  The  Court  denied  it, 
holding  that  the  party,  being  a  curate  at  Benson,  (twelve  miles  south 

*  Cowper,  315.  I   !<!.  322. 

t  Atty.  Geu.  v.  Stephens  1  Atk.  358,  360.  §  2  Wils.  310. 


BEFORE  THE  OVERSEERS  OF  HARVARD  COLLEGE.     379 

of  Oxford.)  was  a  non-resident  Fellow  ;  and  none  but  resident  Fel- 
lows were  entitled  to  the  benefit.  Lord  Camden  said,  "  Great  num- 
bers of  persons  remain  on  the  books,  long  after  they  have  left  the 

University,  on  purpose  to  vote  for  members,  <scc;  many,  who  are 
Fellows  of  colleges  never  go  thither  at  all.  I  myself  was  one  for 
a  long  time,  and  never  went  there  at  all."  So  Sir  William  Jones, 
(Oxford,)*  Mr.  Justice  Blackstone  (All-Souls  College,)!  were  Fel- 
lows, long  after  they  ceased  to  reside  at  college  ;  Mr.  Blackstone 
from  1713  to  17IJ1  ;  Sir  William  Jones  from  17()b'  to  17*:*.  John- 
son, in  his  Lives  of  the  Poets,  states  that  Prior,  the  poet,  at  fifty- 
three  years  of  age,  had  no  resource  hut  his  Fellowship  (p.  340)  ;  yet 
Prior  was  not  a  resident.  It  is  clear,  therefore,  that  residence  is 
not  a  universal  qualification  of  a  Fellow,  though  probably  by  the 
statutes  of  a  particular  college  it  very  often  is  made  so. 

2.  As  to  Instruction.  —  1  have  no  doubt,  that  the  Fellows  are 
not  ipso  facto  required  to  be  Instructers  or  Tutors.  In  none  of  the 
statutes  or  charters,  (summarily  stated,)  that  I  have  seen,  is  such  a 
qualification  spoken  of,  as  attaching  to  Fellows  necessarily.  Can 
the  one  hundred  and  one  Fellows  of  Christ  Church  College  be  all 
Tutors  in  that  college,  when  the  greatest  number  of  members  of 
all  sorts  are  not  more  than  seven  hundred,  half  of  whom  are  not 
residents  ?  I  think  I  shall,  by  and  by,  show,  that,  as  Fellows,  they 
never  or  rarely  are  Tutors. 

It  is  stated  in  the  Oxford  Guide  generally,  that  "  The  Tutors 
[not  the  Fellows]  undertake  the  direction  of  the  classical,  mathe- 
matical, and  other  studies  of  the  junior  members  [that  is,  of  the 
college].  Many  of  the  undergraduates  have  also  private  tutors." 
(p.  180.)  This  paragraph  occurs  in  a  general  description  of  the 
officers,  &,c,  and  after  the  description  of  Fellows  as  a  distinct  class. 

Trinity  College,  or  Hall,  Cambridge,  has  a  foundation  of  a  Mas- 
ter and  twelve  Fellows.  "  Ten  of  the  Fellows  were  usually  lay- 
men ;  and  two  were  in  holy  orders,  who  performed  the  duty  in  the 
chapel,  and  were  usually  the  college  tutors."  %  This  shows,  that 
the  other  ten  were  not. 

Ayliffe,  in  his  History  of  Oxford,  says,§  that  scholars  in  every 
college  are  to  have  their  tutors,  till  promoted  to  a  degree  ;  and  no 
one  may  be  a  tutor,  unless  a  graduate  of  some  faculty,  of  learning, 
and   probity,  and  religion,  to  be  approved  of  by  the  head  of  the 

*  See  Lord  Teign mouth's  Life,  36,  93,  113,  142,  221. 

t  Preface  to  W.  Blackstone's  Rep.  7,  9,  10,  13.  16. 

t  Ex  parte  Wrangharo,  2  Ves.  jr.  609.  §  2  Ayliffe,  115. 


380  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

house,  wherein  he  lives.     How  can  this  be,  if  the  Fellows  are  ex 
officio  "Tutors?" 

The  very  case,  cited  in  page  third  of  the  Memorial,  as  to  Dr.  E. 
Calamy,  as  Tanquam  Sodus  of  Pembroke  Hall,  is  in  our  favor. 
He  was  entitled  to  the  society  of  the  Fellows,  and  had  additional 
privileges,  one  of  which  was  pupillos,  leave  to  take  pupils.  From 
which  I  should  infer,  that  this  was  a  peculiar  privilege  of  some, 
instead  of  a  common  duty  of  all  Fellows. 

3.  As  to  the  government  of  the  college.  —  This,  probably,  more 
generally  than  any  other  thing,  attaches  to  the  Fellows.  But  it 
attaches  to  them,  not  as  Fellows,  but  as  corporators,  where  the 
charter  gives  the  authority. 

But  all  Fellows  do  not  participate  in  the  powers  or  authorities  of 
the  college.  It  is  manifest,  that,  whether  they  do  or  do  not,  must 
depend  upon  the  charter  and  statutes  of  the  founder.  So  AylifFe 
says.* 

The  Oxford  Guide  says,  "  The  members  of  the  University  may 
be  divided  into  two  classes  ;  those  on  the  foundation,  commonly 
called  dependent  members;  and  those  not  on  the  foundation,  termed 
independent  members. 

"  The  independent  members  consist  of  such  persons  as  repair  to 
the  University  for  their  education  and  degrees  ;  but  who,  as  they 
have  no  claim  on  the  estate  of  the  society,  to  which  they  belong, 
so  they  possess  no  voice  or  authority  in  its  management ;  and  dur- 
ing their  residence  in  a  college  or  hall,  they  are  supported  at  their 
own  expense."! 

"The  dependent  members,  or  members  on  the  foundation,  are  as 
follows:  —  The  head  of  the  college,  the  fellows,  (called  students 
at  Christ  Church,)  the  scholars,  (called  demies%  at  Magdalen,) 
chaplains,  and  Bible  clerks. 

"  The  dependent  members  derive  emolument  from  the  revenues 
of  their  societies  ;  and  on  some  of  them  the  management  and  dis- 
cipline of  the  whole  body  devolve."  § 

"  The  independent  members  are  noblemen,  gentlemen-commoners, 
(at  Worcester  called  fellow-commoners^)  and  commoners."  || 

In  Christ  Church  College  we  have  already  seen  that  there  are 
Fellows  on  the  foundation  ;  but  the  government  of  the  college 
belongs  exclusively  to  the  Dean  and  Chapter. Hi 

*  2  Ayliffe,  29.  t  Oxf.  Guide,  p.  179. 

t  So  called  originally  on  account  of  their  being  entitled  to  half  commons  only. 

§   Oxf.  Guide,  179.  ||    Id.  1S3.  11    I  Ayliffe,  240. 


BEFORE    THE    OVERSEERS    OF    HARVARD    COLLEGE.  381 

In  many  of  the  colleges  the  original  foundation  provided  for  a 
limited  number  of  fellowships  only.  Where  the  charter  admitted 
of  an  increase  of  the  number  without  violating  its  provisions,  new 
fellowships  have  from  time  to  time  been  ingrafted  on  the  college  ; 
and  in  such  cases  the  new  ingrafted  Fellows  enjoy  the  same  privi- 
leges as  the  old,  the  corporators  only  being  increased. 

The  doctrine  of  law  is,  that,  if  the  charter  does  not  restrict  the 
number  of  Fellows,  all  new  ones  partake  of  the  original  privileges 
and  duties.  So,  in  St.  John's  College  v.  Todin^ton,*  it  was  held. 
So,  in  Attorney  General  v.  Talbot,  1  Ves.  76,475  ;  S.  C.  3  Atk. 
662. 

But  where  the  charter  restricts  the  Fellows  to  a  particular  num- 
ber, there,  though  there  may  be  new  ingrafted  fellowships,  yet  the 
latter  have  no  privileges  in  the  government,  like  the  old,  but  only 
partake  of  the  bounty  of  their  own  founder.  They  are  no  part  of 
the  collegiate  body.  It  is  so  said  by  the  Attorney  General,  in 
Attorney  General  v.  Talbot,  3  Atk.  662,  670,  and  admitted  by  the 
Court,  Id.  674.  The  same  doctrine  was  held  in  Rex  v.  Bishop  of 
Ely,  2  Term  Rep.  290. 

Therefore,  in  Peter-House  College,  where  the  number  of  Fel- 
lows is  by  the  statutes  of  the  foundation  restricted  to  fourteen,  and 
other  fellowships  have  been  since  ingrafted  ;  these  latter,  though 
called  Fellows,  have  no  corporate  rights  or  authorities. f 

It  seems  clear  f.om  the  foregoing  statements,  that  in  the  English 
colleges  the  Fellows  are  not  necessarily  either  residents,  tutors,  or 
governors.  I  imagine  the  only  thing  common  to  all  (and  that  I  only 
conjecture)  is,  that  they  are  all  stipendiaries,  or  members  on  the 
foundation.  And  here  I  might  advert  to  some  other  circumstances 
respecting  English  Fellows,  which  will  show  that  other  adjuncts, 
as  well  as  residence,  &c,  attach  to  them.  But  I  reserve  them 
for  the  fourth  head. 

IV.  The  original  intention  and  objects  of  the  English  Fellow- 
ship are  very  materially  different  from  those,  which  the  Memorial 
supposes  to  be  the  main  objects  of  the  same  office  in  our  college. 
I  need  not  advert  to  the  known  fact,  that  all  colleges  are 
eleemosynary  corporations.  Lord  Holt  says,  "  There  is  no  dif- 
ference between  a  college  and  an  hospital,  except  only  in 
degree.     A   hospital  is  for  those,   that   are  poor,  and  mean,   and 

*  1  Burr,  158.  I  2  T.  R.  291. 


382  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

low,  and  sickly.  A  college  is  for  another  sort  of  indigent  per- 
sons :  but  it  hath  another  intent,  to  study  in,  and  breed  vp 
persons  in  the  world,  thai  haw  not  otherwise  to  live."* 
What  I  mean  to  assert  is,  that  the  sole  scope  and  design  of  the 
English  colleges  were  to  provide  maintenance  and  funds  to  educate 
persons  ;  that  the  Fellows  (by  whatever  name  they  were  called, 
whether  Fellows,  Scholars,  Students,  or  otherwise)  were  not  in- 
tended to  he  insiructers,  hut  to  he  themselves  instructed ;  that 
the  object  was  to  enable  the  Fellows  to  go  to  the  colleges  to  learn, 
and  not  to  give  learning  to  others.  If  this  be  established,  how 
will  it  be  possible  to  affirm,  that  the  charter  of  Harvard  College 
of  1650  could  intend  the  same  sort  of  persons  ?  The  whole 
Memorial  disavows  it. 

Colleges  were  founded  ad  orandum  et  studendum,  says  Ayliffe,f 
for  prayer  and  study.  This  is  true  ;  but  it  is  also  true,  that  the 
Fellows  themselves  were  to  pray  and  to  study.  Let  us  recur  to 
some   of  the  foundations  of  the  principal  colleges. 

In  All-Souls  College,  the  statutes  of  the  founder  direct,  that 
twenty-four  of  the  Fellows  (the  whole  number  being  forty)  shall 
apply  themselves  to  the  study  of  philosophy  and  divinity,  and 
sixteen  to  the  science  of  the  civil  and  canon  law.  The  latter  are 
called  lawyers,  the  former  artists.  % 

In  Magdalen  College,  some  of  the  Fellows  are  expressly  re- 
quired to  be  of  a  particular  diocese,  and  educated  in  the  study  of 
divinity  only  ;  as  Mr.  Ingledon's.  The  original  foundation  was  for 
pioor  and  indigent  clerks  in  the  University,  studying  the  arts  and 
sciences.  *§> 

In  Brazen-Nose  College,  the  original  statutes  confine  the  Fel- 
lows to  the  study  of  divinity  and  philosophy ;  "  For  a  principal 
and  sixty  scholars  to  receive  an  education  in  philosophy  and 
divinity  here."  \\ 

In  University  College,  the  Bishop  of  Durham  founded  three 
fellowships,  for  the  maintenance  of  three  Fellows,  though  under- 
graduates. H 

In  New  College,  the  founder  divided  his  Fellows  into  artists  and 
lawyers;  viz.,  ten  civil  law,  ten  canon  law,  and  the  remaining  fifty 
to  study  the  arts  and  divinity.** 


*  Phillips  v.  Bury,  2  T.  R.  291.  1  2  Ayl.  3.  i  1  AvI.  338. 

§  Id.  347.  ||  Id.  378.  IT  Id.  152.  **  Id.  315,  319. 


BEFORE    THE    OVERSEERS    OF    HARVARD    COLLEGE.  383 

Iii  Exeter  College  the  original  statutes  direct,  that  the  persons  to 
live  on  this  charity  shall  not  exceed  thirteen  ;  viz.,  one  student  in 
divinity,  one  in  law,  the  other  in  philosophy.* 

In  Trinity  College,  (Oxford.)  the  original  statutes  direct  the 
college  to  be  for  poor  and  indigent  scholars  in  the  1'niversity; 
twelve  are  styled  Fellows,  to  be  educated  in  the  study  of  philoso- 
phy and  divinity  ;  eight  called  scholars,  to  be  educated  in  logic, 
rhetoric,  &ic.f 

In  St.  John's  College,  the  charter  is  for  a  president,  and  fifty 
Fellows  or  scholars  ;  twelve  to  be  lawyers,  three  chaplain  priests, 
three  lay  clerks,  to  live  unmarried,  and   sixty  choristers. J 

In  Pembroke  College,  seven  of  the  fourteen  Fellows  are  to  be 
in  holy  onl<  rs. 

In  Christ  Church  College,  originally,  of  the  one  hundred  stu- 
dents or  Fellows,  forty  were  required  to  be  grammar  scholars; 
and  Queen  Elizabeth  converted  these  forty  into  students.^ 

And  I  believe  it  will  be  found,  that  the  object  uniformly  was  to 
educate  the  Fellows,  so  as  to  fit  them  for  the  learned  professions, 
and  principally  for  the  church.  In  4  Mod.  84,  it  was  said  by 
counsel,  arguendo,  "  A  fellowship  of  a  college  is  for  a  private 
design  only,   to  study." 

Dr.  Radcliffe's  fellowships,  already  referred  to,  were  of  this 
nature.  They  were  for  the  maintenance  of  two  persons,  for  ten 
years,    in  the  study  of  physic,  to  travel  half  the  time.|| 

This  leads  me  to  another  topic,  the  duration  of  fellowships.  — 
The  English  fellowships  are  not  all  perpetual,  that  is,  during  life, 
if  the  party  behaves  well.  Some  undoubtedly  are  ;  as  in  Peter- 
House,  Cambridge  ;  for  the  statutes  of  the  foundation  are,  that  they 
shall  be  scholares perpetui  et  studiosi,  insistentes  studio  Uterarum.*\\ 
But  this  is  far  from  being  universal.  We  see  Dr.  Radcliffe's  are 
only  for  ten  years. 

In  Wadham  College,  founded  in  1613,  by  the  statutes,  the  Fel- 
lows are  superannuated,  and  resign  their  fellowships,  on  the  com- 
pletion of  eighteen  years  from  the  expiration  of  their  regency.** 

In  Baliol  College,  founded  in  1263,  at  first  each  Fellow  received 
only  8d.  per  week,  and  was  under  an  obligation  of  leaving  the 
college,  as  soon  as  he  had  taken  a   master's  degree.\f 

*  1  Ayl.  207.  1  Id.  412.  t  Id.  418,  419.  §  Id.  440. 

||  1  Atk.  R.  358.  1   2  T.  R.  296,  297.  **  1  Ayl.  434. 

tt  Id.  263,  268. 


384  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

Probably  most  fellowships  were  not  looked  upon  as  permanen- 
cies, but  merely  as  places  before  preferment.  I  observe,  that  Mr. 
13iown,  in  arguing,  in  3  Atk.  11.  669,  says,  that  the  fellowships  in 
the  Universities,  one  with  another,  are  not  of  great  value,  perhaps 
not  above  £24  or  £25  a  year. 

I  believe  it  is  agreed  on  all  sides,  that  the  Fellows  of  Harvard 
College,  under  the  charter  of  1650,  hold  their  offices  during  good 
behaviour.     So  Mr.  Everett  agrees  in  his  pamphlet. 

There  are  some  other  circumstances  attached  to  fellowships  in 
England,  which  deserve  notice. 

Ayliffe  says,  that  the  founders  of  the  colleges  have  generally 
provided,  not  only,  that  the  heads  should  be  divines  ;  but  that  the 
Fellows  also  should  in  a  competent  time  enter  into  holy  orders. 
This  shows,  that  Fellows  were  there  to  learn  and  to  qualify  them- 
selves for  the  church. 

So  "  the  Fellows  cannot  marry,  nor  succeed  to  a  college  living, 
nor  indeed  to  another,  beyond  a  certain  value,  without  relinquish- 
ing their  fellowships."* 

Probably  there  are  many  other  peculiarities  attached  to  them, 
which  a  minute  inspection  of  the  charters  and  statutes  (which,  I 
regret,  are  not  within  my  reach)  would  exhibit. 

To  conclude  this  summary.  From  these  remarks,  we  perceive, 
that  it  cannot  be  maintained,  for  a  moment,  that  the  term  "  Fel- 
low "  necessarily  imports  a  resident,  an  instructer,  a  governor  of  a 
college,  or  a  corporator,  in  England.  Nor  is  there  any  identity 
in  the  rights,  duties,  poivers,  privileges,  tenure  of  office,  or 
qualif cations  of  English  Fellows.  The  name  itself  is  often 
away,  when  the  party  is  still  deemed,  though  not  styled,  a  Fellow. 
How,  then,  can  it  be  correctly  said,  that  a  "  Fellow"  means  in  the 
charter  of  1650  a  certain  personage,  whose  duties  and  qualifications 
are  well  known  and  fixed  ? 

If  it  be  said,  that  Fellows  must  be  residents;  many  of  the 
English  Fellows  are  non-residents. 

If  it  be  said,  that  they  must  be  instructcrs  ;  many  (I  presume 
most)  of  the  English  Fellows  are  not  instructcrs.  So  far  from  it, 
the  object,  in  the  original  creation  of  most,  if  not  all,  of  the 
foundations,  is  charity  —  to  support  the  Fellows  in  their  own  studies, 
and  not  in  teaching  others.  They  may  now  teach  ;  but  it  is  a  dis- 
tinct business  from  their  fellowships,  for  which,  I  doubt  not,  they 
receive  a  distinct  compensation. 


Oxf.  Guide,  190. 


BEFORE    THE    OVERSEERS    OF    HARVARD    COLLEGE.  385 

If  it  be  .said,  that  they  must  bo  Corporators,  or  members  of  the 
Corporation,  entitled  to  exercise  the  government,  and  conduct  the 
revenues  of  the  government ;  there  are  many  English  Fellows,  who 
have  no  such  authority,  and  are  not  corporators.  Even  a  part  of 
the  body  named  in  the  charter  may  not  have  a  title  to  such  gov- 
ernment. Some  colleges  are  incorporated  as  Master,  Fellows, 
and  Scholars.  Now,  though  "  scholars,"  as  here  used,  does  not 
mean,  what  we  call  "  scholars,"  but  beneficiaries  of  a  certain 
grade  ;  yet  I  do  not  doubt,  that  in  some  cases  the  "  scholars"  are 
altogether  excluded  from  the  government  by  the  statutes  or  char- 
ters. Traces  are  to  be  found  in  our  books  leading  to  this  conjec- 
ture ;  but  I  affirm  nothing  positively,  because  I  have  not  yet  seen 
a  direct  case.  Where  "  scholars  "  arc,  or  may  be,  undergraduates, 
or  grammar  scholars,  (as  some  foundations  are,)  it  is  presumable, 
that  they  are  not  governors.  Certain  it  is,  that  such  statutes  may 
be  made,  and  such  charters  granted. 

So,  many  English  Fellows  are  required  to  study  particular 
branches  of  science,  as  divinity,  law,  philosophy,  the  civil  law,  the 
canon  law  ;  to  be  clerks  ;  to  be  artists  ;  to  be  medical  students  ;  to 
be  poor  and  indigent ;  to  be  in  holy  orders ;  as  qualifications  for  the 
office. 

Many  English  Fellows  hold  their  places  for  life  ;  some  for  years  ; 
some  merely  until  they  graduate  as  masters.  Acceptance  of  church 
livings,  or  possession  of  church  livings  of  a  certain  value,  vacates 
some  fellowships,  and  constitutes  ineligibility.  Livings  of  a  less  value 
constitute  no  vacancy  or  ineligibility.  Absence  for  six  months 
vacates  some  fellowships.*  Travelling  for  five  years  is  indispen- 
sable as  a  qualification  in  others,  (Dr.  Radcliffe's  Fellowships.) 

Some  English  Fellows  are  chosen  from  particular  schools ;  some 
from  particular  colleges,  counties,  dioceses ;  some  from  inferior 
grades  of  persons  in  their  own  college,  as  scholars,  probationary 
Fellows ;  some  from  the  University  at  large ;  some  must  be  gradu- 
ates ;  some  must  be  undergraduates. 

It  is  said,  "All  fellows  are  bound  not  to  marry."  Celibacy  is, 
therefore,  it  seems,  a  universal  qualification. 

What  qualifications,  then,  are  we  to  take,  or  reject  ?  Shall  we 
say,  that  all  must  be  residents,  because  some  are  ?  that  all  must  be 
tutors,  though  all  originally  were  pupils  or  students  ?  that  all  must 
be   corporators,  or  collegiate   governors,  when  a  part  only  are,  or 

■1  Term.  Rep.  291. 

49 


386  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

were  ?     Why  not  tak  e  the  opposite  course  ;  and  say,  that  all  may 
be  non-residents,  because  some  are,  Sec.  ? 

If  universality  of  qualification  be  the  ground  of  adoption  of  a 
similar  qualification  here,  then  all.  our  Fellows  ought  to  be  in  celi- 
bacy. Who  in  America  ever  contended  for  that,  from  the  charter 
of  1650  downwards? 

The  truth  is,  the  word  "  Fellow  "  has  not,  as  to  colleges,  any 
peculiar  meaning.  The  students  at  Christ  Church  ;  the  demies 
at  Magdalen  ;  the  scholars  in  some  other  colleges,  are  Fel- 
lows in  fact,  though  not  in  name.  Why  ?  Because  they  are 
known  admitted  members  on  the  foundation.  Ingrafted  Fellows 
are  not  the  less  Fellows,  because  they  constitute  no  part  of  the 
original  or  present  college  Corporation.  Why  ?  Because  "  Fellow  " 
imports  no  particular  powers,  authorities,  or  duties ;  but  simply 
Socius,  Associate,  or  Member  of  the  foundation,  entitled  to  such 
privileges,  and  such  only,  as  the  charter  or  statutes  define  or  admit. 

When,  therefore,  we  construe  the  charter  of  1650,  we  must 
construe  it  upon  its  own  terms,  and  apply  to  the  persons  named 
therein  such  powers,  and  authorities,  and  qualifications,  as  the  char- 
ter itself  provides,  and  no  other.  Where  the  charter  is  silent,  we 
are  not  at  liberty  to  insert  any  limitations. 

If  I  am  right  in  this  view  of  the  case,  the  ground  proposed  by 
the  Memorial  must  be  surrendered.  If  the  main  argument  fail, 
there  is  an  end  of  all,  that  follows. 

If  there  be  not  an  identity  between  our  Fellows  and  the  English 
Fellows,  or  between  all  of  the  latter  as  to  rights,  duties,  and  privile- 
ges, I  do  not  see,  how  any  argument  can  be  bottomed  on  it.  Conjec- 
tural similarity  is  of  no  importance.  Until  we  can  definitely  affirm, 
what  ours  are,  and  theirs  arc,  we  cannot  proceed ;  for  until  that 
is  done,  we  can  institute  no  process  of  comparison,  as  to  similarity 
or  dissimilarity.  In  the  order  of  things,  therefore,  the  first  point  is 
to  ascertain  what  our  Fellows  are. 

But  I  propose  to  notice  some  of  the  auxiliary  grounds  stated  to 
fortify  the  principal  one. 

V.  It  is  said,  that  there  were  persons  in  the  College  at  the  time  of 
the  charter,  and  previously,  known  by  the  denomination  of  "  Fel- 
lows." This  I  freely  admit.  The  preamble  of  the  charter  states  it ; 
the  form  of  admission  states  it ;  and  other  College  records  recognise  it. 
The  Memorial  does  not  pretend,  that  there  is  any  thing  in  the  Col- 
lege records  before  the  formula  of  admitting  Fellows,  that  recog- 
nises it.     When  that  formula  was  first  adopted  is  not  stated,  or  ex- 


BEFORE  THE  OVERSEERS  OF  I         COLLEGE.    387 

actly  known.  But  it  appears  in  the  College  records  immediately 
after  "  Certain  orders  by  the  scholars  and  officers  of  the  College  to 
be  observed,"  under  date  of  28th  March,  1650.  The  next  pre- 
ceding entry  in  the  book  is  the  26th  of  March,  1650.  President 
Leverett  in  his  Journal  states,  that  it  was  written  by  the  Rev.  .Jona- 
than Mitchell,  one  of  the  members  of  the  Corporation.  There  is 
no  evidence,  that  it  was  ever,  after  the  charter  of  1650,  used 
upon  the  admission  of  any  Fellow  of  the  Corporation  under  the 
charter. 

There  is  reason  to  believe,  that  the  word  "  Fellow  "  was  not  used, 
or  the  person  known  in  the  College,  in  1646.  There  is  an  entry  in 
the  book  entitled,  "  The  laws,  liberties,  and  orders  of  the  College, 
confirmed  by  the  Overseers  and  President  in  the  years  1642,  1643, 
1644,  1645,  1646."  In  this  collection,  consisting  of  nineteen 
articles,  "  Tutors  "  are  frequently  mentioned  ;  "  Fellows  "  are  never 
mentioned.  Yet  in  some  instances,  if  they  then  existed,  there  would 
be  a  propriety  in  naming  them  ;  as  in  the  7th  article,  which  requires 
of  the  scholars,  that  "  they  shall  honor,  as  their  parents,  magistrates, 
elders,  tutors,  and  aged  persons." 

In  January  13,  1647,  there  is  an  agreement  on  the  books  for  a 
lease  for  years  to  Richard  Taylor  of  a  shop  in  Boston  belonging  to 
the  College,  in  which  he  covenants  to  leave  it  in  good  repair,  &c. 
"  to  Harvard  College,  the  President  and  Fellows  thereof." 

In  an  entry  on  6th  May,  1650,  there  is  an  order  of  the  Overseers 
directing  that  no  scholar,  "  without  the  fore-acquaintance  and  leave 
of  the  president  and  his  tutor,  or,  in  the  absence  of  either  of  them, 
oitwo  of  the  senior  Fellows"  should  be  present  at  any  public  meet- 
ing or  concourse  of  people,  "  in  the  time  or  hours  of  the  College 
exercise,  public  or  private."  It  is  added,  in  the  same  orders, 
"  Neither  shall  any  scholar  exercise  himself  in  any  military  band, 
unless  of  known  gravity,  and  of  approved  sober  and  virtuous  con- 
versation, and  that  with  the  leave  of  the  president  and  his  tutor." 
These  orders  clearly  show,  that  at  this  time  Tutor  and  Fellow 
were  not  identical  in  the  College  ;  and  that  there  were  "  Senior 
Fellows"  who  were  not  Tutors.  How,  then,  can  we  say,  that 
"  Fellows  "  in  the  charter  meant  Instructers  ?  So,  in  the  "  Formula 
admittendi  scholares  aediles,"  the  scholar  is,  by  one  article,  to  show 
reverence  to  the  President  "  una  cum  sociis  singulis,"  and,  in  the 
next  article,  to  obey  his  tutor. 

In  such  obscure  transactions  of  so  early  a  period,  with  so  few 
materials  to  give  certainty.  I  may  mistake  in  the  view,  that  I  take 


388  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

of  these  facts.  But  I  feel  great  confidence  in  the  conjecture,  that 
the  "Fellows"  here  referred  to,  were  graduates  of  the  College,  then 
resident  there  and  pursuing  their  studies,  to  qualify  them  for  some 
profession,  and  probably  they  were  beneficiaries.  It  would  be  nat- 
ural, that  there  should  not  be  any  such  Fellows  there  until  1646, 
because  there  were  so  few  graduates,  (the  first  being  only  four 
years  before,)  who  were  not  in  fact  tutors. 

In  respect  to  the  words  in  Taylor's  lease,  either  the  word,  "  Fel- 
lows," there  used,  is  loosely  used  to  designate  the  Immediate  Gov- 
ernment of  the  College  ;  or,  what  is  possible,  the  shop  may  have 
been  a  donation  for  the  benefit  of  the  President  and  Fellows ;  and 
so  the  lease  conformed  to  the  words  of  the  grant,  however  inarti- 
ficially  drawn. 

In  respect  to  the  Formula.*  It  does  not  show,  who  the  socii 
were,  or  what  was  their  occupation.  The  third  article  requires  them 
to  instruct  all  the  students  committed  to  their  charge.  But  it  does 
not  prove,  that  they  were  the  general  tutors.  If  they  were  bene- 
ficiaries, they  might  properly  be  required,  in  the  then  infant  state 
of  the  College,  to  perform  some  duty  there.  But  the  preceding 
entry  shows,  that  they  were  not  identical  with  tutors,  whose  duty  it 
was  to  give  general  instruction. 

The  4th  article  proves  nothing,  as  to  these  "Fellows  "  having  any 
particular  office  or  government  over  the  College,  or  being  the  actual 
administrators  of  its  funds.  For,  in  another  article,  a  similar  engage- 
ment is  required  of  the  scholars,  in  the  form  entitled  "  In  scholari- 
bus  admittendis,"  or,  according  to  the  record  in  Lib.  3,  p.  9,  "  For- 
mula admittendi  scholares  aclUes."  The  words  in  the  4th  arti- 
cle are,  "  Sedulo  prospicies  ne  quid  detriment!  collegium  capiat, 
quantum  in  te  situm  est,  sive  in  ejus  sumptibus,  sive  in  edificiis  et 
structura,  fundis,  proventibus,  fenestris,  ceterisque  omnibus,  qua? 
nunc  ad  collegium  pertinent,  aut  dum  egeris,  pertinere  possint."f 
Besides;  the  article  itself  contains  but  a  very  imperfect  enumeration 
of  the  duties  of  Fellows  of  the  Corporation.  Their  duties  extend 
to  making  laws,  elections,  removals,  investing  funds,  &c.  The 
words  may  be  construed,  as  merely  an  engagement  to  prevent 
any  wanton  dilapidations  or  mischiefs. 

It  is  also  perfectly  clear,  that  "Fellows"  and  "Tutors,"  or 
general  Instructors,  were  not  used  after  the  charter  as  identical 
terms  ;  because,  though  there  were  five  Fellows,  there  never  were 


•    Memo.  p.  4.  i   College  Records,  under  date  December  10th,  1646 


BEFORE  THE  OVERSEERS  OF  HARVARD  COLLEGE.     389 

but  two  tutors  until  1703.  One  Tutor  was  added  in  1703,  and 
another  in  1720  ;  and  up  to  the  year  1800  there  were  not  more 
than  four  tutors 

Hut  Anther.  There  could  not,  in  the  English  sense  of  the  term, 
"  Fellow,"  (if  by  that  is  to  be  understood  a  collegiate  corporator,) 
be  any  such  persons  as  Fellows  in  Harvard  College  before  1650  ; 
for  the  charter  of  1642  did  not  authorize  any  such  officers  to  be 
created.  That  act  (for  it  is  a  subsisting  part  of  the  chartered 
authority  of  the  College)  gives  to  the  governor,  deputy  governor, 
magistrates,  and  teaching  elders  of  the  six  neighbouring  towns,  the 
powers  of  governing,  regulating,  and  managing  the  College  and 
its  members,  its  revenues  and  concerns.  And  by  implication  they 
are  created  a  corporation,  for  they  are  made  capable  of  takino-  be- 
quests, donations,  revenues,  &c,  that  had  been,  or  might  be,  given 
to  the  College  ;  and  they  were  to  manage  the  same  "  to  the  use 
and  behoof  of  the  College  and  the  members  thereof." 

By  Members  of  the  College  must  have  been  meant  all  persons 
connected  with  the  institution ;  namely,  the  president,  instructers, 
and  other  officers,  and  the  students.  But  they  could  not  delegate 
their  corporate  powers  to  other  persons.  Nor  could  they  make  the 
president  and  instructers  corporators.  Nor  could  the  president,  or 
instructers,  or  persons  called  Fellows,  take  in  succession  by  any 
bequest  to  them  as  a  corporate  body ;  for  they  were  not  so  incorpo- 
rated. The  gifts  and  donations,  given  to  the  College,  must  have  been 
given,  in  legal  construction,  to  the  governor  and  magistrates  and 
elders.  They  must  comply  with  the  wills  of  the  donors  ;  and  they 
only  could  take  the  donation.  If  any  donor  gave  a  fund  to  sup- 
port any  poor  persons  in  their  studies  at  the  College,  or  any  Fellows 
in  the  College  ;  the  words  could  import  no  more  than  this,  that  per- 
sons residing  there,  and,  in  a  sense,  members  of  the  College,  that 
is,  beneficiaries  upon  the  foundation,  should  be  so  maintained.  But 
tutors  in  no  exact  sense  could  be  considered  as  Fellows,  ipso  facto ; 
but,  as  beneficiaries,  they  might  be  both  Tutors  and  Fellows,  that 
is,  members  on  the  foundation. 

But  I  understand,  that  in  point  of  fact  the  College  records  do  not 
show,  that  before  the  time  of  the  charter  of  1650*  any  donations 
had  been  made  for  the  maintenance  of  persons  at  the  College, 
answering  the  description  of  Fellows  at  the  English  colleges,  in 

*  See  as  to  Tutor's  Pasture,  post. 


390  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

the  sense  of  the  Memorial.*  Some  indigent  students  were  pro- 
vided for  ;  and  probably  also  some  resident  graduates,  who  received 
stipends.  But  as  to  Fellows  on  permanent  foundations,  I  am  not 
aware,  that  there  now  are,  or  ever  have  been,  any  in  Harvard  Col- 
lege correspondent  to  English  Fellows.  The  only  persons  on  per- 
manent foundations  are,  as  I  believe,  our  Professors.  The  gifts  of 
Clover,  Keyne,  and  Pennoyer,  might  have  authorized  such  founda- 
tions ;  but  none  have  been  established. 

To  be  sure,  in  a  loose  and  general  sense,  almost  all  persons,  who 
arc  officers  of  the  College,  might  be  called  Fellows,  if  by  that  word  we 
are  to  understand,  not  English  Fellows,  but  merely  persons  "  resi- 
dent at  the  College,  and  actually  engaged  there  in  carrying  on  the 
duties  of  instruction  or  government,  and  receiving  a  stipend  for  their 
services."  Thus,  Proctors  and  Regents  fall  within  the  description, 
as  well  as  Tutors  and  Professors.  And  the  definition  would  apply 
as  well  to  any  resident  graduate  at  the  College,  who  should  be 
casually  intrusted  with  any  instruction  or  government,  however 
small,  as  to  any  tutor  or  professor.  But  though  such  a  definition 
may  exemplify  what  the  Memorial  now  means  by  Fellows,  it 
would  in  no  respect  help  us  to  an  understanding  of  what  the  charter 
meant  by  Fellows ;  for  that  is  expressly  argued  in  the  Memo- 
rial to  be  what  is  meant  in  English  colleges  by  Fellows. 

It  is  incumbent  on  the  Memorialists  to  show,  that  there  were  in 
Harvard  College,  before  1650,  fellowships  on  foundations,  like  the 
English,  before  we  are  called  upon  to  admit,  that  the  charter  used 
the  word  Fellows  in  that  sense.  They  have  not  shown  that  by 
any  direct  or  positive  evidence. 

But  it  is  said,  that  the  preamble  of  the  charter  shows,  that  there 
were  such  Fellows  in  the  College  previously.  It  may  be  admitted, 
that  whatever  is  recited  in  the  preamble  should  be  assumed  as  facts 
at  this  period.  What,  then,  are  the  facts  stated  in  the  preamble  ?  It 
recites,  that  many  well  disposed  persons,  &lc,  have  given  sundry 
gifts,  &c,  for  the  advancement  of  all  good  literature,  arts,  and 
sciences  in  Harvard  College,  fcc,  "and  to  the  maintenance  of  the 
President  and  Fellows,  and  for  all  accommodations  of  buildings, 
and  all  other  necessary  provisions,  that  may  conduce  to  the  educa- 
tion of  the  English  and  Indian  youth  of  this  country  in  knowledge 
and  godliness." 

*  Memo.  p.  2. 


BEFORE  THE  OVERSEERS  OF  HARVARD  COLLEGE.     391 

Now  the  sole  question  is,  In  what  sense  is  the  word,  "Fellows," 
here  used  ? 

The  College  charter  was  doubtless  drawn  under  the  direction  of 
the  College  ollicers,  as  I  shall  show  from  a  document  by  and  by. 
At  that  time  there  were  persons  known  in  the  College  by  the  name 
of  "  Fellows."  What  were  they  ?  We  are  certain  they  were  not 
Fellows  on  any  foundation  like  those  in  English  colleges,  be- 
cause none  such  then  existed.  We  have  strong  proof,  that  they 
were  not  tutors,  for  they  are  contradistinguished  from  tutors.  They 
must,  therefore,  have  been  some  persons  resident  at  the  College, 
and  beneficiaries  there ;  or  graduates  studying  for  the  professions ;  or 
the  term  must  have  been  used  in  a  general  sense,  as  importing  the 
Associates  of  the  President  in  the  immediate  business  of  the  College. 
It  cannot  be  presumed,  that  the  word  meant  to  designate  mere 
beneficiaries  ;  for  that  would  exclude  tutors ;  and  yet,  I  presume,  the 
main  grants  must  have  been  for  instructers.  I  conclude,  then,  the 
sense  is  general,  that  grants  had  been  made  for  the  maintenance  of 
the  President  and  his  Associates,  that  is,  the  other  officers  in  the  Col- 
lege, without  designating  them  by  any  permanent  or  fixed  character. 
The  charter  referred  to  the  fact,  and  not  to  any  particular  quality 
in  the  parties. 

The  charter  then  declares,  that  "  the  said  College,  &c,  shall  be  a 
corporation  consisting  of  seven  persons,  to  wit :  a  President,  jive 
Fellows,  and  a  Treasurer,  or  Bursar."  Now,  pausing  here,  if  the 
corporation  were  any  other  than  a  college,  could  there  be  a  doubt 
what  the  charter  intended  ?  If  it  had  been  a  charter  of  the  Ameri- 
can Academy,  or  of  the  Royal  Academy,  or  of  a  Bank,  or  of  an 
Insurance  Company,  could  any  one  doubt,  that  by  "  Fellows  "  was 
meant  a  mere  designatio  personarum  as  equals,  and  associates,  and 
members  of  the  corporation  ?  If  the  word,  Trustees,  or  Directors, 
or  Governors,  or  Members,  had  been  inserted,  would  not  the  sense 
have  been  complete,  and  the  same  ? 

If  the  charter  meant  to  incorporate  persons,  who  were  then  acting 
officers,  would  it  not  have  recited  the  fact  ?  Were  there  Jive 
Fellows  at  the  College  at  the  time  ?  Was  there  a  Treasurer  or 
Bursar?  We  know  there  was  a  President;  but  beyond  that  there 
is  no  certainty. 

If  the  charter  meant  to  incorporate  certain  persons  then  in  office, 
as  the  Memorial  seems  in  some  parts  to  suppose,  there  was  no  need 
to  designate  any  particular  persons  by  name  afterwards. 


392  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

If  it  meant  to  select  from  the  "  Fellows,"  he,  then  existing, 
then  it  created  the  select  few  a  corporation,  and  ascertained  them 
to  be  the  present  incumbents,  without  providing  who  should  be  the 
future  incumbents. 

If  it  is  supposed,  that  the  existing  collegiate  officers  were  incor- 
porated, because  it  is  said,  that  "  the  College  shall  be  a  corporation," 
the  argument  proves  too  much ;  for  then  it  means  the  aggregate  of 
the  institution,  scholars  and  pupils,  as  well  as  instructers  and  offi- 
cers. 

But  the  truth  is,  that  the  phrase  is  a  very  common  one, 
though  not  a  very  exact  one.  It  is  only  saying,  that  thereafter  the 
College  shall  be  under  a  corporate  government.  All-Souls  College 
in  Oxford,  1437,  was  incorporated  by  the  name  of  "  Collegium 
Animarum  omnium  defunctorum  Oxonii."  No  one,  however,  sup- 
poses, that  the  dead  were  incorporated.  We  well  know,  that  it  is 
under  the  government  of  a  Warden  and  forty  Fellows.  These  were 
appointed  by  or  after  the  act  of  incorporation. 

The  charter  proceeds  to  name  the  persons,  who  shall  constitute 
the  first  Corporation.  This  shows,  that  they  were  not  incorporated 
ex  officio.  The  words  are,  "  And  that  Henry  Dunster  shall  be  the 
first  President,  Samuel  Mather,  Samuel  Danforth,  Masters  of  Arts, 
Jonathan  Mitchell,  Comfort  Starr,  and  Samuel  Eaton,  Bachelors  of 
Arts,  shall  be  the  five  Fellows,  and  Thomas  Danforth  to  be  pres- 
ent Treasurer;  all  of  them  being  inhabitants  of  the  Bay."  Now,  why 
are  not  these  persons  designated,  instead  of  Masters  and  Bachelors 
of  Arts,  as  existing  Instructers  or  Fellows  of  the  College  ?  Why 
is  it  not  said,  that  they  arc,  and  shall  continue  to  be,  Fellows,  instead 
of,  shall  be  Fellows  ?  Why  are  they  described  as  "  all  of  them 
being  inhabitants  of  the  Bay,"  instead  of  all  of  them  being  Fellows 
of  the  College  ? 

The  Corporation  are  further  by  the  charter  "  authorized,  at  any 
time  or  times,  to  elect  a  new  President,  Fellows,  or  Treasurer,  so 
oft,  from  time  to  time,  as  any  of  the  said  persons  shall  die  or  be 
removed."  They  are  to  elect  "  new  Felloivs ;  "  then  the  persons, 
who  are  to  be  successors,  are  not  Fellows  until  elected.  And  there 
is  no  restriction  as  to  the  persons,  from  whom  they  shall  be  chosen ; 
of  course  they  may  be  chosen  at  large.  Even  in  the  English  col- 
leges new  Fellows  may  be  chosen  at  large,  unless  the  charter  or 
statutes  of  the  foundation  prohibit  it. 

No  duties  are  prescribed  to  the  Fellows,  as  distinct  from  the 
duties  of  the  Corporation  itself.    It  is  not  said,  they  shall  be,  before 


BEFORE  THE  OVERSEERS  OF  HARVARD  COLLEGE.     393 

or  after  the  choice,  residents  or  instructed.  But,  doubtless,  they 
have  authority  as  Corporators  to  regulate  the  College,  because  the 
charter  confers  it  on  the  Corporation. 

The  charter  adds,  "  Which  said  President  and  Fellows  for  the 
time  being  shall  for  ever  hereafter,  in  name  and  in  fact,  be  one  body 
politic  and  corporate  in  law  to  all  intents  and  purposes,  and  shall 
have  perpetual  succession,  and  shall  be  called  by  the  name  of 
President  and  Fellows  of  Harvard  College,  and  shall  from  time  to 
time  be  eligible  as  aforesaid."  As  the  Corporation  is  designated  as 
"  President  and  Fellows,"  the  Treasurer,  though  not  so  called,  is 
properly,  and  in  fact,  a  Fellow,  in  the  sense  of  law  ;  but  he  is  also 
something  more,  namely,  Bursar. 

The  President  and  Fellows  are  further  authorized  to  "  meet  and 
choose  such  officers  and  servants  for  the  College,  and  make  such 
allowance  to  them,  &tc,  as  they  shall  think  fit."  It  seems  to  me 
clear,  that  this  part  of  the  charter  contemplates,  that  the  Officers 
may  be  different  from  the  Corporators.  There  are  other  clauses  to 
the  same  purpose. 

There  was  an  order  of  the  General  Court  in  May,  1650,  a  few 
days  only  before  the  grant  of  the  charter,  which  illustrates  this 
subject.  It  is  in  these  words  :  "  In  answer  to  the  petition  of 
Henry  Dunster,  President  of  Harvard  College  in  Cambridge,  with 
relation  to  his  desire  in  few  particulars,  namely,  for  the  grant  of  a 
Corporation  for  the  well  ordering  and  managing  the  affairs  belonging 
to  the  College,  the  Court  is  ready  to  grant  a  Corporation  to  the  Col- 
lege, so  as  meet  persons  be  presented  to  the  Court,  with  a  draft  of 
their  power  and  ability,  neither  magistrates,  who  are  to  be  judges 
in  point  of  difference,  that  shall  or  may  fall  out,  nor  ministers,  who 
are  unwilling  to  accept  thereof,"  &c. 

Now,  this  appears  to  me  to  show,  that  the  legislature  did  not 
contemplate,  that  none  should  be  in  the  Corporation,  except  residents 
and  instructers.  Why  otherwise  should  the  exception  be  confined 
to  magistrates,  and  to  such  ministers  as  would  not  accept  ?  Why 
not  exclude  all  ministers,  not  resident  in  the  College  ?  Why  not 
exclude  all  persons,  not  then  in  office  at" the  College  ? 

Further.  If  there  were  Fellows  in  the  College  at  the  time  of 
the  charter,  they  were  then  Fellows  of  the  House,  or  Academical 
Fellows;  but  they  were  certainly  not  corporate  Fellows,  that  is, 
not  Fellows  of  the  existing  Corporation,  for  that  was  by  law  com- 
posed only  of  the  governor,  &,c,  magistrates,  and  elders.  If  there 
were  more  than  five,  then  those,  not  appointed  of  the  Corporation 
50 


394  JURIDICAL,    DISCOURSES     AND    ARGUMENTS. 

by  the  charter,  remained   simply  Academical  Fellows.     Whether 
there  were  any  such,  I  know  not. 

The  Memorial  lays  stress  on  the  supposed  incongruity  of  saying, 
that  Fellow  means  only  member  or  associate  ;  because  it  is  said, 
that  then  the  Corporation  consists  of  seven  and  not  of  Jive  Fellows. 

To  me  it  is  clear,  from  the  words  of  the  charter,  that  the  Treas- 
urer is  necessarily  a  Fellow.  The  Treasurer  is  declared  one  of 
the  Corporation;  the  corporate  name  is  "  President  and  Fellows  ;" 
and  it  is  said,  that  the  "  President  and  Fellows  "  shall  be  a  corpo- 
rate body.  How  can  this  be,  unless  under  the  term,  "  Fellows," 
is  here  included  the  Treasurer  1  If  he  is  one  of  the  Corporation, 
and  yet  the  Corporation  is  composed  of  the  President  and  Fellows, 
he  must  be  a  Fellow,  or  nothing. 

The  Memorial,  too,  supposes,  that  it  would  be  absurd  to  say  a 
Fellow  of  the  Corporation. 

This  is  an  extraordinary  assertion.  The  words  of  the  charter 
expressly  declare,  that  "  The  said  College  shall  be  a  Corporation 
consisting  of  seven  persons,  to  wit,  a  President,  five  Fellows,  and 
a  Treasurer  or  Bursar.''  Observe,  it  does  not  say  the  President,  the 
five  Fellows,  the  Treasurer,  now  in  office.  Now,  of  what  were  these 
five  persons  the  Fellows?  —  Of  the  College,  says  the  Memorial. 
The  words  of  the  charter  are  not  so ;  they  are  Fellows  of  the  Cor- 
poration ;  for  that  is  what  the  charter  creates  then:.  The  President 
is  President  of  the  Corporation  ;  the  Treasurer  is  Treasurer  of  the 
Corporation  ;  the  Fellows  are  Fellows  of  the  Corporation.  In 
common  parlance  we  call  them  President,  Fellows,  and  Treasurer 
of  the  College  ;  but,  strictly  speaking,  they  are  Fellows  of  the 
Cordoration.  The  Memorial  confounds  the  corporate  name  of 
"  President  and  Fellows  of  Harvard  College,"  with  the  character 
of  the   parties  as  resident  members. 

Nor  is  there  any  thing  unusual  or  incorrect  in  the  phrase.  In 
the  English  colleges,  there  are  Fellows,  who  are  not  Corporators, 
in  other,  words  who  are  not  Fellows  of  the  Corporation  ;  and  there 
are  others,  who  are  Corporators.  Thus,  in  Christ  Church  College, 
the  Dean  and  Chapter  constitute  the  sole  Corporation.  The  Fel- 
lows of  the  College  (one  hundred  and  one  in  number)  are  not 
members  of  the  Corporation.  They  are,  therefore,  strictly,  only 
Fellows  of  the  House,  or  Academical  Fellows.  So,  in  all  those 
colleges,  where  the  Corporation  consists  of  a  limited  number  of  Fel- 
lows by  the  original  statutes,  those  Fellows,  and  those  only,  are 
Fellows  of  the   Corporation,  that  is,  Corporators.     And    all    the 


BEFORE  THE  OVERSEERS  OK  HARVARD  COLLEGE.     395 

ingrafted  Fellows,  who  are  very  numerous,  are  only  Fellows  of 
the  House,  or  Academical  Fellows.  In  St.  John's  College,  Cam- 
bridge, there  are  thirty-two  original  Fellows,  and  twenty-seven 
Fellows  upon  ingrafted  foundations.*  So,  in  Peter-House  College, 
Cambridge,  the  original  Fellows  are  restricted  to  fourteen.  There 
are  many  ingrafted  Fellows.  The  former  are  Fellows  of  the 
Corporation  ;  the  latter  Fellows  of  the  House  only.  It  is  a  real 
distinction  ;  and  the  words  are  accurate  in  indicating  the  thing 
meant.  Nay,  more  ;  if  by  "  Fellows"  were  meant  resident  instruc- 
tors or  governors,  Stc,  as  the  Memorial  asserts,  there  would  now  be 
many  Fellows  in  Harvard  College,  (supposing  the  five  Fellows 
were  all  resident  instructers,)  who  would  be  Fellows  of  the  House, 
or  Academical  Fellows,  and  the  five  only  would  be  Fellows  of  the 
Corporation.  There  are  many  traces  in  the  public  proceedings  in 
relation  to  the  College,  showing  this  distinction.  The  pretence  of 
incongruity  or  absurdity,  therefore,  vanishes. 

There  must  be  some  phrase  to  distinguish  Members  on  the  foun- 
dation and  Corporators,  from  resident  students,  whether  graduates 
or  not.  In  many  of  the  English  colleges  they  are  called  common- 
ers, in  some  cases  fellow-commoners,  &c. 

In  this  connexion  I  advert  again  to  the  formula  for  the  admission 
of  Fellows.  I  think  I  have  shown  what  these  Fellows  were  ;  at 
all  events,  that  they  were  not  Corporators.  This  formula  never  was 
used  for  the  induction  of  Fellows  after  the  charter.  It  really, 
therefore,  has  no  bearing  to  prove  what  sort  of  Fellows  the  Corpo- 
ration was  to  be  composed  of. 

It  is  said,  however,  that  this  formula  has  not  been  repealed  ; 
and,  therefore,  that  it  ought  still  to  be  considered  as  a  subsisting 
regulation  of  the  College.  But  it  is  a  clear  rule  of  law,  that  a 
statute  for  the  government  of  a  college  may  be  presumed  to  be 
repealed  from  long  disuse.f  A  disuse  from  the  period  of  the 
charter  would  be  decisive  on  this  head,  that  it  was  then  repealed. 
But  it  was  in  fact  repealed  by  operation  of  law  from  the  time  the 
charter  was  granted  ;  for,  as  the  Corporation  had  the  sole  power 
under  the  charter  to  make  laws  and  regulations,  and  the  old  regu- 
lations were  not  confirmed,  either  by  the  charter  of  1650,  or  by 
any  subsequent  order,  they  fell  with  the  old  establishment.^     This 

*  1  Burr,  R.  202.  t  Attorney  General  v.  Middleton,  2  Ves.  330. 

$  President  Dunster,  in  his  letter  of  10th  June,  1654,  resigning  his  office,  states 
the  fact,  "  that  our  former  laws  and  orders,  by  which  we  have  managed  our  place, 
be  declared  illegal  and  null."     College  Charters,  Ap.  17. 


396  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

accounts,  and  satisfactorily,  why  nothing  was  done  about  or  under 
them. 

But,  in  point  of  fact,  were  the  Fellows  first  named  all  resident 
instructers  at  the  time  of  the  charter?  It  seems  almost  incredible, 
that  they  should  all  have  been  so  ;  for  the  College  had  not  more 
than  thirty  scholars,  and  to  have  employed  five  tutors  at  that  time, 
or  before,  would  seem  utterly  inconsistent  with  the  acknowledged 
poverty  of  the  College.  It  is  probable,  that  Samuel  Mather  was  an 
instructer  ;  Mitchell  may  have  been  an  instructer  ;  Samuel  Dan- 
forth  was,  probably,  an  instructer,  or  one  of  those,  who  were  de- 
nominated Fellows.  Whether  Eaton  and  Starr  were,  I  have  no 
means  of  knowing.  The  probability  is,  that  they  were  not.  It  is 
asked,  why  persons  so  young  were  selected.  The  answer  is,  that  at 
that  time  the  Colony  was  small,  the  charge  burdensome,  and  the 
order  of  the  General  Court,  in  May,  1650,  agreeing  to  give  a  char- 
ter, shows,  that  there  was  a  difficulty  in  getting  ministers  to  accept. 
They  probably  took  men,  though  young,  who  were  disposed  to 
be  zealous  in  the  College  affairs.  If  they  were  all  Fellows,  why 
were  they  not  so  designated  in  the  charter  ?  It  was  the  peculiar 
and  appropriate  name.  Why  are  they  designated  as  Masters,  and 
Bachelors,  and  Inhabitants  of  the  Bay,  and  not  as  Fellows  ? 

As  to  Samuel  Danforth,  there  are  some  facts  worthy  of  notice. 
The  charter  was  granted  on  the  31st  of  May,  1650.  The  Roxbury 
records,  under  date  of  12th  May,  1650,  have  the  following  clause  : 
"  Samuel  Danforth  recommended  and  dismissed  from  Cambridge 
church,  and  admitted  here"  This  shows,  that  he  either  had  then 
removed,  or  contemplated  a  removal,  from  Cambridge.  On  the 
24th  September,  1650,  Samuel  Danforth  was  ordained  pastor  of 
the  church  in  Roxbury.  Now,  it  must  be  inferred  from  these 
facts,  that  his  intention  to  remove  from  Cambridge  and  settle  at 
Roxbury  was  known  to  the  College  officers.  If  residence  and 
instruction  were  indispensable  for  a  Fellow  of  the  Corporation, 
would  his  name,  under  these  circumstances,  have  been  inserted 
originally  in  the  charter  ?  He  accepted  the  office.  There  is  no 
proof,  that  he  ever  resigned  it,  or  was  removed.  If  not,  then  the 
legal  presumption  is,  that  he  remained  in  office  until  his  death, 
which  was  on  the  19th  day  of  the  8th  month,  1674.  In  the  charter 
of  1672,  in  which  Samuel  Danforth  is  named  as  a  Corporator,  he 
is  described  as  "  Fellow  of  the  said  College,"  which  certainly  was 
meant  to  state  his  present  designation  ;  for  the  present  designation 
of  all  the  other  Fellows  is  given  ;   as,   "  Minister  of  the   church," 


BEFORE    THE    OVERSEERS    OF    HARVARD    COLLEGE.  397 

"Teacher  of  the  church,"  "Master  of  Arts,"  Stc.  In  a  note  in 
the  College  Records  (No.  3,  p.  63)  stating  his  death,  it  is  said, 
"This  day  died  Samuel  Danforth,  Senior  Felloiv  of  the  College." 

These  facts  would,  probably,  he  thought  decisive  proof,  that,  not- 
withstanding Danforth's  non-residence,  he  remained  a  member  of 
the  Corporation  until  his  death.  But  there  are  some  circumstances, 
brought  to  discredit  this  conclusion  by  the  learned  Professor,  Mr. 
Everett,  in  the  Pamphlet  alluded  to,  pp.  30  and  34.  Thus,  Dr. 
Hoar,  writing  to  his  nephew,  in  a  letter  of  27th  March,  1661,  and 
speaking  of  Richardson's  Tables,  says,  "  I  know  no  way  to  recover 
them,  but  of  some,  that  were  of  that  society  in  former  times ;  I 
suppose  Mr.  Danforth,  Mr.  Mitchell,  and  others  have  them."* 

Now  when  was  this  letter  written  ?  Mr.  Everett  does  not  give 
the  date  ;  but  it  was  in  1661.  Mr.  Danforth  had  been  a  student  and 
a  tutor  at  the  College.  What  Dr.  Hoar  refers  to  is,  that,  when 
Danforth  was  there  as  a  student  or  tutor,  he  had  these  Tables 
transcribed.  But  this  does  not  show,  that  he  was  not  a  corporate 
Fellow  at  the  time  ;  but  only  not  then  a  resident  of  the  society. 
It  is  common,  but  it  is  loose  language. 

Another  circumstance  relied  on  is,  what  is  stated  in  Johnson's 
Wonder-working  Providence,  in  a  passage  of  a  letter  in  1651. 
He  writes,  "  Also  the  godly  Mr.  Samuel  Danforth,  he.  He  put 
forth  many  almanacs,  and  is  now  called  to  the  office  of  a  teaching 
elder  in  the  church  of  Christ  at  Roxbury,  who  was  one  of  the 
Felloivs  of  this  College."  The  only  question  is,  what  the  writer 
means  by  "  Fellow."  If  he  meant  a  Fellow  in  the  sense  of  Tutor, 
or  resident  instructer,  and  as  a  mere  synonyme,  there  is  no  diffi- 
culty ;  and  if  the  Memorial  is  right,  that  the  instructers  were  so 
called,  the  writer  is  correct.  But  the  question  is,  did  he  mean  to 
assert,  that  Danforth  had  then  resigned  his  seat  as  a  Fellow  of  the 
Corporation,  or  only  that  he  had  left  the  College?  Surely,  this 
language  cannot  overturn  the  strong  presumption  of  law  arising 
from  the  other  facts  already  mentioned. 

But,  for  the  purpose  of  argument,  I  am  willing  to  concede,  (what 
has  not  been  proved,)  that  all  the  persons  named  in  the  charter 
were  at  the  time  Tutors  and  Fellows,  in  the  sense  of  the  Memo- 
rial, in  the  College.  What  then  ?  It  proves,  that  they  were 
eligible  as  Fellows  of  the  Corporation,  not  that,  ipso  facto,  they 
were  under  the  charter  the  Corporators.  Much  less  does  it  prove, 
that  they,  and  they  alone,  were  eligible  as  members  of  the  Corpo- 
ration. 

*  Hist.  Collect,  vi.  103. 


398  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

Mr.  Everett  now  surrenders  this  point.  He  admits,  that  any 
person  may  he  elected  as  a  Fellow  into  the  Corporation,  whether  a 
residenl  or  non-resident  instructer,  or  not.  All  he  now  contends  for  is, 
that,  after  their  election  the  Fellows  ought  to  he  residents,  and  assist 
in  the  instruction  or  government  of  the  College.  This  certainly 
surrenders  much  of  the  original  argument;  for  if  prior  residence 
and  instruction  were  not  indispensable  qualifications  for  the  ollice, 
the  charter  did  not  refer  to  the  existing  Fellows.  It  did  not  de- 
signate them  ;  it  did  not  make  it  a  condition  precedent,  that  they 
should  he  resident  and  instructers.  But,  at  most,  ex  vi  termini, 
"  Fellow"  imported  a  subsequent  obligation  to  reside  and  instruct. 

This  point  has  been  already  fully  considered  ;  and  I  leave  it,  and 
proceed  to  notice  some  other  documents,  introduced  by  the  friends 
of  the  Memorial. 

First.  In  August,  1652,  two  years  after  the  charter,  a  collec- 
tion was  directed  to  be  made  for  the  maintenance  of  the  President 
and  Fellows  of  the  College.  The  Memorial  and  the  Argument  of 
Mr.  Everett  suppose,  that  by  such  a  gift  after  the  charter  the  main- 
tenance should  be  for  the  individual  Fellows  of  the  College.  I  ap- 
prehend in  law,  that  such  a  gift,  generally  made,  would  be  construed, 
as  a  mere  gift  to  the  Corporation  by  its  corporate  name,  and  the 
maintenance  to  be  the  general  maintenance  of  the  institution.  The 
words  of  this  order  are,  "  for  the  maintenance  of  the  President,  cer- 
tain Villous,  and  poor  scholars,"  and  therefore  may  be  construed 
justly  to  apply  to  individuals.  But  what  does  this  prove  ?  that 
all  the  Fellows  were  to  be  maintained  ?  No  ;  "  certain  Fellows  " 
only.  At  this  very  time,  some  of  the  Fellows,  named  in  the 
charter,  were  doubtless  instructers  ;  all  of  them  probably  were  not. 
This  accounts  for  the  distinction.* 

The  like  remarks  are  generally  applicable  to  the  donation  of  the 
General  Court,  in  June,  1653,  "  for  the  more  comfortable  main- 
tenance of  the  President,  Fellows,  and  Students  "  of  the  College.f 
And  the,  grant  is  made,  in  terms,  "  unto  the  said  Society  and  Cor- 
poration." The  charter  then  had  an  existence,  and  the  Corporation 
was  recognised,  as  a  subsisting  body,  governing  the  College.  It 
might  be  proper  to  give  stipends  even   to  the  students  at  that  time. 

In  August,  1653,  the  General  Court  ordered,  that  the  Cambridge 
rate  should  be  paid  to  the  College,  for  the  discharge  of  any  debt 
from  the  country  to  the  College  ;  and  if  any  surplus,  it  was  "  to  be 

cr  to  John  Lowell,  Esq.,  p.  62.  t  Ibid. 


BEFORE    THE    OVERSEERS    OF    HARVARD    COLLEGE.  399 

and  remain  for  the  College  stock,  and  for  further  clearing  and  set- 
tling all  matters  in  the  College,  in  reference  to  the  yearly  mainte- 
nance of  the  President,  Fellows,  and  necessary  officers  thereof, 
and  repairing  the  houses."*  Now  this  only  shows,  thai  there  were 
Fellows  at  the  College  at  that  time,  who  needed  support.  But  the 
document  goes  further.  It  shows,  that  a  committee  was  appointed 
for  certain  ohjects  of  inquiry,  as  to  the  expenditures  of  the  Col- 
lege ;  among  them,  to  "consider  what  number  of  Fellows  may  be 
necessary  for  carrying  on  the  work  in  the  College,  and  what  yearly 
allowance  they  shall  have,  and  how  to  be  paid."  Now,  this  shows, 
that  the  General  Court  contemplated,  that  all  the  Fellows  would 
not  be  required  for  the  purpose  ;  that  all  might  not  be  resident, 
or  maintained  ;  leaving  it,  not  on  the  charter,  but  as  a  matter  of 
policy  and  expediency. 

The  committee  made  a  report.  We  have  not  that  report.  But  in 
August,  1653,  the  General  Court  passed  an  order,  that  the  dona- 
tions should  be  continued  "  to  the  care  and  trust  of  the  Overseers 
of  the  College  ; "  and  the  produce  was  "  to  be  for  the  maintenance 
of  the  President,  Fellows,  and  other  necessary  charges  of  the 
College,  and  the  several  yearly  allowances  of  the  President  and 
Fellows;  to  be  proportioned,  as  the  said  Overseers  shall  determine. "f 
Now,  this  proves  no  more  than  the  fact,  that  there  were  then  "Fel- 
lows "  at  the  College,  who  ought  to  be  maintained  ;  not,  that  all 
the  Fellows  ought  to  reside  there,  or  that  all  were  maintained,  and 
did  reside  there. 

1  observe,  that,  in  President  Dunster's  resignation,  on  the  10th 
June,  1654,  he  speaks  not  only  of  new7  regulations  having  been  im- 
posed on  the  College,  and  the  former  laws  annulled  ;  [by  whom  ?]  but 
he  says,  "that,  whatever  we  do  is  to  myself  and  the  Fellows  unwar- 
rantable, and  not  secure."  Now,  he  cannot  be  supposed  to  speak 
of  himself  and  the  Fellows  of  the  Corporation  ;  for  the  charter 
gave  them  express  warrant  to  make  by-laws,  &c,  the  Overseers 
consenting  thereto.  He  probably,  therefore,  alludes  to  the  Fel- 
lows of  the  House,  who  had  no  authority  at  all,  unless  so  far  as 
the  Corporation  gave  them  authority.  But  if  he  refers  to  the  Fel- 
lows of  the  Corporation,  he  then  alludes  solely  to  the  negative  of 
the  Overseers.  It  appears  to  me,  therefore,  that  the  charter  was 
really  acted  upon  from  its  original  grant,  though  feebly. 

The  grant  of  Charlestown  ferry,  in  1654,  &c,  is  to  the  same 
effect.  J 

*  Letter,  pp.  63,  64.         t  Id.  65.         t  Colony  Laws,  1672,  p.  30  ;  Letter,  p.  66. 


400  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

In  respect  to  the  Fellows'  or  Tutors'  Lot,  I  can  say  but  little, 
as  I  have  not  seen  the  deed,  which  is  said  to  be  in  Latin.*  I 
know  not  the  terms  of  the  grant,  or  the  persons  to  whom  granted. 
It  is  said  by  Mr.  Everett  in  his  Pamphlet,  that  it  was  granted  in 
L645  (live  years  before  the  charter);  and  from  the  Memorial 
and  the  Pamphlet  I  gather,  that  it  was  given  to  the  "  Fellows  "  of 
the  College,  co  nomine. ,|  If  so,  it  was  a  void  grant;  for  they  were 
not  at  that  time  a  Corporation,  capable  of  taking  in  succession  by 
that  or  any  other  name.  If  given  to  the  existing  Body  or  Corpo- 
ration, that  is,  to  the  governor,  fee,  for  the  use  of  the  Fellows, 
doubtless  it  referred  to  that  class  of  persons,  known  there  at  that 
time  by  the  name  of  Fellows,  whether  they  were  instructers  or 
not.  We  have  already  seen,  that  in  1650  "Tutors"  and  "  Fel- 
lows "  were  contradistinguished  in  the  College  orders.  But  I  am 
given  to  understand  by  those,  who  are  acquainted  with  the  terms 
of  this  deed,  that  they  have  been  totally  misconceived  by  the 
writer  of  the  Pamphlet;  and  that  the  deed  is  a  legal  grant  to  the 
College  itself,  by  its  corporate  name.  I  dismiss  this  point,  there- 
fore, as  one,  upon  which  I  am  not  sufficiently  informed  to  risk  an 
argument. 

[Mr.  John  Lowell  (one  of  the  Overseers)  here  rose,  and 
stated,  that  the  Pamphlet  of  Professor  Everett  had  totally  mistaken 
the  grant  of  the  Tutors'  Lot  ;  that  it  was  in  fact  a  grant  to  the 
College  by  its  corporate  name,  and  passed  a  good  title  to  it.] 

As  to  Coggan's  grant,  in  1652,  for  the  use  of  the  President  and 
Fellows  of  Harvard  College,!  I  apprehend  it  is  a  grant  to  the  Cor- 
poration in  its  corporate  character. 

Glover's  legacy,  in  1653,  to  Harvard  College,  "  for  and  towards 
the  maintenance  of  a  Felloiu  there  five  pounds  for  ever,"$  must 
be  understood,  as  referring,  not  to  the  Fellows  of  the  Corporation, 
but  to  a  person  approaching  somewhat  to  the  description  of  an 
English  Fellow  ;  that  is,  to  a  person  to  be  taught,  and  not  to  teach. 

So,  Keyne's  legacy  of  £320,  in  1653,  "  for  poor  and  hopeful 
scholars,  and  for  some  addition  yearly  to  the  poorer  sort  of  Fel- 
lows." j  This  surely  refers  to  a  class  of  Fellows  resident  at  the 
College,  and  not  of  the  Corporation. 

Pennoyer's  fund,  in  1670,  is  given,  "  that  two  Fellows  and  two 
Scholars  for  ever  should  be  educated,  brought  up,  and  maintained 
in   the  College  at   Cambridge."  %     This  answers  exactly   to  the 

*  Memo.  5.     t  Letter  25,  39,  69.       J  Id.  69.       §  Id.  70.       ||  Id.      11  Id.  170. 


BEFORE  THE  OVERSEERS  OF  HARVARD  COLLEGE.     401 

description  of  English  Fellows.  The  gift  was,  not  to  support 
teachers,  but  to  educate  persons.  It  is  impossible  to  believe,  that 
the  Fellows  of  the   Corporation  were  to  be  educated. 

But  that  after  the  charter  there  were  Fellows  not  receiving 
salaries,  as  well  as  Fellows,  who  did  receive  them,  is  apparent  from 
an  order  of  the  Overseers,  anno  1666.  "  It  is  ordered  by  the 
Overseers,  that  such  as  are  Fellows  of  the  College  and  have  sala- 
ries paid  them  out  of  the  treasury,  shall  have  their  constant  resi- 
dence in  the  College,  and  shall  lodge  therein,  and  be  present  with 
the  scholars  at  all  times  in  the  hall,  and  have  their  studies  in  the 
College  ;  so  that  they  may  be  better  enabled  to  inspect  the  manners 
of  the  scholars,  and  prevent  all  unnecessary  damage  to  the  so- 
ciety." 

Alter  the  charter  of  1672,  there  is  no  question,  that  there  were 
non-resident  Fellows,  as  well  as  resident  Fellows. 

The  passage  cited  from  Randolph's  Narrative,  addressed  to  the 
Privy  Council,  12th  October,  1676,  contains  this  clause  :  — "  The 
allowance  of  the  President  is  £100  a  year,  and  a  good  house. 
There  are  but  four  fellowships  ;  the  two  Seniors  have  each  £30 
per  annum  ;  the  two  Juniors  £15;  but  no  diet  allowed.  TJiese 
are  tutors  to  all  such  as  are  admitted  students."* 

Now,  if  Randolph  is  accurate  at  all,  it  is  clear,  that  all  the  Fel- 
lows of  the  Corporation  were  not  residents  at  that  time  ;  for  the 
Corporation  consisted  of  five  Fellows.  In  point  of  fact  we  know,  that 
three  of  the  then  existing  Corporation,  to  wit,  Mr.  Shepard,  Mr. 
Mather,  and  Mr.  Oakes,  were  not  tutors,  and  two  of  them  were 
non-residents. 

This  leads  me  to  another  consideration. 

VI.  The  point  of  usage.  —  I  agree  to  the  doctrine  stated  by 
Lord  Mansfield,  that,  where  the  words  of  a  charter  are  doubtful, 
the  usage  is  of  great  force.  "  Not,"  (as  he  says,)  "  that  usage  can 
overturn  the  clear  words  of  a  charter ;  but,  if  they  are  doubtful, 
the  usage  under  the  charter  will  tend  to  explain  the  meaning  of 
them."f 

But  what  was  the  case,  to  which  his  remarks  applied  ?  It  was  one 
respecting  the  borough  of  Portsmouth,  a  corporation  by  presump- 
tion, and  also  by  a  charter  of  Charles  I.  The  corporation  consisted 
of  a  Mayor,  twelve  Aldermen,  and  an  indefinite  number  of  Bur- 
gesses.    The  charter  declared,  that  the  election   of  Mayor  should 

*  Letter  70.     Hutch.  Collect,  of  Paper.-,  477,  502.  t   1  Cowper,  R.  250. 


402  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

be  thus:  that  the  Mayor,  Aldermen,  and  Burgesses,  or  the  greater 
part  of  them,  should  assemble,  and  should  there  continue,  till  they, 
or  the  greater  part  of  them  thru  there  assembled,  should  elect 
a  Mayor.  The  sole  question  was,  whether  the  charter  meant,  that 
a  major  part  of  the  whole  corporate  body,  or  only  a  major  part  of 
those  assembled,  were  to  choose  the  Mayor.  The  usage  had  been 
for  the  latter  to  choose,  and  that  usage  was  for  one  hundred  and 
seventy  years.  The  Court  thought  the  usage  decisive  ;  but  they 
thought  it  also  a  right  construction  of  the  charter. 

But  it  is  material  to  consider  the  effect  of  usage  in  cases  of  this 
nature.  A  long  uninterrupted  usage  in  the  affirmative  establishes 
nothing  but  its  being  rightful.  For  instance,  if,  in  the  present  case, 
there  had  been  a  long  usage  to  elect  the  tutors  into  the  Corpora- 
tion, that  would  certainly  prove  that  tutors  were  not  ineligible. 
But  if,  from  the  first  institution  of  the  College  to  this  time,  none 
but  tutors  had  been  chosen  Fellows,  it  would  not  prove,  that 
no  other  persons  were  eligible.  Why  ?  Because  the  charter  has 
not  in  terms  confined  the  choice  to  tutors ;  and  therefore  all,  that 
can  be  affirmed,  is,  that  there  is  no  pretence  to  exclude  them,  as  a 
matter  of  right  or  duty.  On  the  other  hand,  if  a  tutor  had  never 
been  elected  a  Fellow  to  this  day,  it  could  afford  no  proof,  that 
the  charter  excluded  them  ;  for  it  contains  no  disqualification  of 
tutors  ;  and  the  exclusion  might  be  merely  from  policy.  Suppose 
every  president  of  the  College  had  been,  to  our  day,  a  minister 
ol  the  Gospel  ;  there  would  be  no  pretence  to  say,  that  by  the 
charter  all  other  persons  were  ineligible.  Why  ?  For  the  plain 
reason,  that  such  an  appointment  is  not  required  by  the  charter  ; 
and  the  usage  could  affirm  no  more  than  that  it  was  not  inconsistent 
with  the  charter. 

Now,  take  the  case  in  the  most  favorable  view,  which  the  Memo- 
rial states,  that  for  the  space  of  twenty-two  years  (namely,  from  1650 
to  1672),  the  Fellows  were  residents  and  instructers.  A  usage  for 
twenty-two  years  is  very  short  to  establish  any  construction  of  words 
of  a  doubtful  nature  in  a  charter.  But  upon  the  words  of  the 
charter  the  construction  could  not  be  doubtful  ;  for,  I  repeat  it, 
tutors,  on  our  construction,  are  clearly  eligible.  The  usage,  then, 
establishes  only  its  own  correctness. 

But  the  Memorial  contends,  that  the  charter  excludes  all  persons, 
if  not  from  election,  at  least  from  acting  as  Fellows  after  election, 
unless  they  are  or  become  residents  and  instructers.  Now,  what  are 
the  admitted  facts  on  this  point  ?    That  the  usage  has  been,  without 


BEFORE  THE  OVERSEERS  OF  HARVARD  COLLEGE.     403 

interruption,  from  1672  to  the  present  time,  a  period  of  one  hundred 
and  fifty-two  years,  to  have  non-resident  Fellows,  and  for  a  great 
length  of  time  a  majority  of  the  Fellows  have  been  non-residents, 
and  not  instructers.  Now,  this  usage,  if  usage  is  of  any  avail,  is  a  flat 
negative  to  the  exclusion  or  qualification.  It  directly  contradicts  it. 
If  the  words  of  the  charter  were  doubtful  on  this  point,  it  would 
settle  it.  An  early  usage  for  twenty-two  years  cannot  be  permitted 
to  prevail  against  a  subsequent  usage  of  one  hundred  and  fifty-two 
years.  If  the  former  asserts  an  exclusive  right  in  residents  ;  the 
latter  denies  it,  and  proves  it  founded  in  mistake,  and  becomes  itself 
conclusive  the  other  way. 

But  it  may  be  said,  that  the  very  point  was  contested  in  1722. 
I  admit  it,  and  do  not  mean  to  enter  into  any  consideration  of  the 
respectability,  talents,  or  virtues  of  the  different  parties.  It  is  clear, 
that  there  was  a  difference  of  opinion  among  men  of  high  standing. 
Upon  full  argument,  and  after  much  excitement,  the  point  was  settled 
against  the  exclusive  right  of  the  resident  instructers  ;  and  for  a 
century  past  the  Corporation  has  remained  organized  with  non-resi- 
dents in  the  Board.  The  usage  of  a  century,  after  such  a  contro- 
versy so  ended,  must  be  decisive,  if  any  can  be.  If  it  be  not,  then 
surely  a  short  usage,  not  negativing  any  other  right  for  twenty-two 
years,  can  be  of  no  weight. 

VII.  Then,  let  us  consider,  in  the  next  place,  the  confirmation  of 
the  charter  by  the  State  constitution  of  1780.  It  must  be  deemed 
to  act  upon  the  known  and  settled  state  of  things  then  existing,  as  to 
the  Corporation.  Four  of  the  Fellows  were  then  non-residents. 
The  Constitution  declares,  that  "  The  President  and  Fellows  of 
Harvard  College  in  their  corporate  capacity,  and  their  successors 
in  that  capacity,  &c,  shall  have,  &tc,  all  the  powers,  he,  which 
they  now  have,  or  are  entitled  to  have,  &c,  and  the  same  are  here- 
by ratified  and  confirmed  unto  them,  the  said  President  and  Fellows 
of  Harvard  College,  and  to  their  successors,  he,  for  ever." 

Now,  for  myself,  I  should  be  willing  to  rest  the  whole  case  upon 
this  single  solemn  act  of  ratification.  It  is  the  highest  sovereign 
sanction  of  the  charter,  and  of  the  Corporation  de  facto,  as  being 
then  rightfully  organized. 

VIII.  An  argument,  now  greatly  relied  on  in  behalf  of  the 
Memorialists,  is,  that  as  the  College  is  by  the  charter  required  to  be 
at  Cambridge,  the  Corporation  must  be  local,  and  the  Corporators 
or  Fellows  must  therefore  be  local  residents. 


404  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

This  argument  has  no  foundation  in  law.  In  general,  Corpora- 
tions may  be  said  to  have  no  locality  ;  though  the  Corporators  may 
be  local,  and  entitled  to  be  such  only  by  locality ;  as,  for  instance, 
the  inhabitants  of  a  town  or  parish  are  Corporators  only  during  their 
residence.  But  the  Corporation  itself  is  not  local.  It  exists  only  in 
intendment  of  law.  It  is  a  mere  legal  entity,  and  can  have  no  habi- 
tation, though  it  has  a  name.  It  is  itself  but  a  shadow,  though  it 
necessarily  acts,  and  is  brought  into  operation  by  living  beings.  A 
Corporation  may  be  required  to  do  its  business  at  a  particular  place, 
and  there  only  ;  but  this  is  a  limitation  of  its  objects,  and  it  does  not 
give  the  Corporation  locality.  This  is  frequently  the  case  with 
regard  to  banks,  insurance  companies,  bridge  and  turnpike  corpora- 
tions, academies,  manufactories,  &c.  In  Sutton's  Hospital,  10  Co. 
32  b.,  the  Court  say,  "  A  Corporation  aggregate  of  many  is  invisi- 
ble, immortal,  and  rests  only  in  intendment  of  law."  So,  in  Inhabi- 
tants of  Lincoln  County  v.  Prince,  2  Mass.  R.  544,  Chief  Justice 
Parsons  said,  "  A  Corporation  aggregate  has  in  law  no  place  of 
commorancy,  although  the  Corporators  may  have."  There  is  the 
same  point  in  Taunton  and  South  Boston  Turnpike  Corporation  v. 
Whiting,  9  Mass.  R.  321.  And,  in  general,  when  Corporations  are 
created  for  local  objects,  the  Corporators  are  not  to  be  deemed 
such,  so  long  only  as  they  reside  in  the  place,  unless  the  charter 
expressly  makes  such  a  qualification.  The  proprietors  of  a  bank, 
insurance  company,  bridge,  turnpike,  or  manufactory,  may  reside 
any  where,  unless  expressly  prohibited  by  the  charter.  The  law 
never  imputes  locality  to  Corporators,  simply  because  the  objects  of 
the  Corporation  are  local. 

Upon  the  whole,  after  examining  all  the  grounds  of  legal  right 
assumed  by  the  Memorialists,  it  appears  to  me,  that  their  case  is 
wholly  unsupported  by  any  legal  principles.  And  I  advise  that 
the  Overseers  reject  the  Memorial  accordingly.* 


*  [The  foregoing  is  not  the  Argument  actually  delivered  by  Judge  Story  before 
the  Board  of  Overseers,  but  merely  the  minutes,  from  which  he  spoke.  It  is, 
therefore,  a  mere  sketch  of  the  outlines  of  his  Speech.] 


ADDRESS 


DELIVERED   BEFORE   THE   MEMBERS   OF  THE    SUFFOLK  BAR,   AT  THEIR  AN- 
NIVERSARY, ON   THE  4th  SEPTEMBER,   1821,   AT  BOSTON. 


[FirBt  published  in  the  American  Jurist,  January,  1829.] 

In  comparing  the  present  state  of  jurisprudence  with  that  of 
former  times,  we  have  much  reason  for  congratulation.  In  govern- 
ments purely  despotic,  the  laws  rarely  undergo  any  considerable 
changes  through  a  long  series  of  ages.  The  fundamental  institu- 
tions, (for  such  there  must  be  in  all  civilized  societies,)  whether 
modelled  at  first  by  accident  or  by  design,  by  caprice  or  by  wisdom, 
assume  a  settled  course,  which  is  broken  in  upon  only  by  the  positive 
edicts  of  the  sovereign,  suited  to  some  temporary  exigency.  These 
edicts  rarely  touch  any  general  regulation  of  the  state,  and  still 
more  rarely  attempt  any  general  melioration  of  the  laws.  For  the 
most  part  they  affect  only  to  express  the  arbitrary  will  of  the  monarch, 
stimulated  by  some  pressing  private  interest,  or  gratifying  some 
temporary  passion,  or  some  fleeting  state  policy.  There  is  in  such 
governments,  what  may  be  called  a  desolating  calm,  a  universal 
indisposition  to  changes,  and  a  fearfulness  of  reform  on  all  sides  ; 
on  the  part  of  the  people,  lest  it  should  generate  some  new  oppres- 
sion ;  and  on  the  part  of  the  ruler,  lest  it  should  introduce  some 
jealousy  or  check  of  his  arbitrary  power.  In  such  countries  the 
Law  can  scarcely  be  said  to  have  existence  as  a  science.  It  slum- 
bers on  in  a  heavy  and  drowsy  sleep,  diseased  and  palsied.  It 
breathes  only  at  the  beck  of  the  sovereign.  It  assumes  no  general 
rules,  by  which  rights  or  actions  are  to  be  governed.  Causes  are 
decided  summarily,  and  more  with  reference  to  the  condition  and 
character  of  the  parties,  than  with  reference  to  principles  ;  and 
judges  are  ministers  of  state  to  execute  the  policy  of  the  cabinet, 
rather  than  jurists  to  interpret  rational  doctrines. 


406  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

Under  such  circumstances  the  lapse  of  centuries  scarcely  disturbs 
the  repose  of  the  laws,  and  men  find  themselves  standing  in  the 
same  crippled  posture,  which  was  forced  upon  their  ancestors,  long 
after  their  sepulchres  have  mouldered  into  dust,  and  the  names 
of  the  oppressor  and  the  oppressed  are  sunk  into  doubtful  tradi- 
tion?. 

The  laws  of  the  Medes  and  Persians  were  proverbially  immuta- 
ble. The  institutions  of  China  have  undergone  no  sensible  change 
since  the  discovery  and  doubling  of  the  Cape  of  Good  Hope  ;  and 
the  pyramids  of  Egypt,  lost  as  their  origin  is  in  remote  antiquity, 
are  not  perhaps  of  a  higher  age,  than  some  of  its  customary  laws 
and  institutions.  And  it  may  be  affirmed  of  some  of  the  Eastern 
nations,  that,  through  all  the  revolutions  of  their  dynasties,  it  is  diffi- 
cult to  point  out  any  fundamental  changes  in  the  powers  of  the 
government,  the  rights  of  the  subject,  or  the  laws,  that  regulate 
the  succession  to  property,  since  the  Christian  era. 

In  free  governments,  and  in  those,  where  the  popular  interests 
have  obtained  some  representation  or  power,  however  limited,  the 
case  has  been  far  otherwise.  We  can  here  trace  a  regular  progress 
from  age  to  age  in  their  laws,  a  gradual  adaptation  of  them  to  the 
increasing  wants  and  employments  of  society,  and  a  substantial 
improvement,  corresponding  with  their  advancement  in  the  refine- 
ments and  elegancies  of  life.  In  the  heroic  and  barbarous  ages, 
the  laws  are  few  and  simple,  administered  by  the  prince  in  person, 
assisted  by  his  compeers  and  council.  But,  as  civilization  advances, 
the  judicial  powers  are  gradually  separated  from  the  executive  and 
legislative  authorities,  and  transferred  to  men,  whose  sole  duty  it  is 
to  administer  justice  and  correct  abuses.  The  punishment  of  crimes, 
at  first  arbitrary,  is  gradually  moulded  into  a  system,  and  moderated 
in  its  severity  ;  and  property,  which  is  at  first  held  at  the  mere 
pleasure  of  the  chief,  acquires  a  permanency  in  its  tenure,  and  soon 
becomes  transmissible  to  the  descendants  of  those,  whose  enterprise 
or  good  fortune  has  accumulated  it.  Whoever  examines  the  history 
of  Grecian,  or  Roman,  or  Gothic,  or  Feudal  jurisprudence,  will 
perceive  in  the  strong  lines,  which  may  every  where  be  traced,  the 
truth  of  these  remarks.  And  it  is  matter  of  curious  reflection, 
that,  while  the  laws  and  customs  of  the  East  seem  in  a  great  meas- 
ure to  have  been  stationary  since  the  Christian  era,  those  of  Europe 
have  undergone  the  most  extraordinary  revolutions  ;  attaining,  at  one 
period,  great  refinement  and  equity  ;  then  sinking  from  that  elevation 
into  deep  obscurity  and  barbarism,  under  the  northern  invaders  ;  and 


ADDRESS    BEFORE    THE    SUFFOLK    BAR.  407 

rising  again  from  the  ruins  of  ancient  grandeur  to  assume  a  new 
perfection  and  beauty,  which  first  softened  the  features,  and  then 
extinguished  the  spirit  of  the  feudal  system. 

It  is  not,  however,  upon  topics  of  this  sort,  suggested  by  a  broad 
and  general  survey  of  the  past,  however  interesting  to  the  philo- 
sophical inquirer,  that  I  propose  to  dwell  at  this  time.  My  purpose, 
rather,  is  to  offer  some  considerations  touching  the  past  and  present 
state  of  the  common  law,  and  to  suggest  some  hints  as  to  its  future 
prospects  in  our  own  country,  and  the  sources,  from  which  any 
probable  improvements  must  be  derived.  In  doing  this,  I  shall 
attempt  nothing  more  than  a  few  plain  sketches,  contenting  myself 
with  the  hope  of  being  useful,  and  leaving  to  others,  of  higher  talents 
and  attainments,  the  more  ambitious  path  of  eloquence  and  learning. 

The  history  of  the  common  law  may  be  divided  into  three  great 
epochs  ;  the  first  extending  from  the  reign  of  William  the  Con- 
queror to  the  Reformation  ;  the  second  from  the  reign  of  Elizabeth 
to  the  Revolution,  which  placed  the  house  of  Brunswick  on  the 
throne ;  and  the  third  including  the  period,  which  has  since  elapsed, 
down  to  our  own  time. 

The  first  of  these  epochs  embraces  the  origin  and  complete 
establishment  of  the  feudal  system,  with  all  its  curious  burdens 
and  appendages  ;  its  primer  seizins,  its  aids,  its  reliefs,  its  escheats, 
its  wardships,  its  fines  upon  marriages  and  alienations,  and  its  chiv- 
alric   and  soccarre  services.     Connected   with   these   were  the  dis- 

O 

tinct  establishment  of  tribunals  of  justice,  administered  first  by 
Judges  in  Eyre,  and  afterwards  by  the  Courts  at  Westminster ;  the 
introduction  of  assizes,  and  writs  of  entry  ;  and  the  perfecting  of  all 
those  forms  of  remedies,  by  which  rights  are  enforced,  and  wrongs 
redressed.  Some  of  the  most  venerable  sages  of  the  law  belong 
to  this  period ;  the  methodical  and  almost  classical  Bracton ;  the 
neat  and  perspicuous  Glanville ;  the  exact  and  unknown  author  of 
Fleta  ;  the  criminal  treatise  of  Britton  ;  the  ponderous  collections 
of  Statham,  Fitzherbert,  and  Brooke  ;  and,  above  all,  the  venerable 
Year-Books  themselves,  the  grand  depositories  of  the  ancient  com- 
mon law,  whence  the  Littletons  and  the  Cokes,  the  Hobarts  and 
the  Hales,  of  later  times,  drew  their  precious  and  almost  inexhaus- 
tible learning.  Of  these  black-lettered  volumes  kw  in  our  days 
can  boast  the  mastery.  Even  in  England  they  are  suffered  to 
repose  on  dusty  and  neglected  shelves,  rarely  disturbed,  except 
when  some  nice  question  upon  an  appeal  of  death,  upon  the  nature 
of  seizin,  or  upon  proceedings  in  writs  of  right,  calls  them  up,  like 


408  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

the  spirits  of  a  departed  age,  to  bear  their  testimony  in  the  strife. 
This,  too,  was  the  age  of  scholastic  refinements,  and  metaphysical 
subtilties,  and  potent  quibbles,  and  mysterious  conceits  ;  when  special 
pleading  pored  over  its  midnight  lamp,  and  conjured  up  its  phan- 
toms to  perplex,  to  bewilder,  and  sometimes  to  betray.  This,  too, 
was  the  age  of  strained  and  quaint  argumentation,  when  the  discus- 
sions of  the  bar  were  perilously  acute  and  cunning.  And  yet, 
though  much  of  the  law  of  these  times  is  grown  obsolete,  and  the  task 
of  attempting  a  general  revival  of  it  is  hopeless,  it  cannot  be  denied, 
that  it  abounds  with  treasures  of  knowledge.  It  affords  the  only 
sure  foundation  in  many  cases,  on  which  to  build  a  solid  fabric  of 
argument ;  and  no  one  ever  explored  its  depths,  rough  and  difficult 
as  they  are,  without  bringing  back  instruction  fully  proportioned  to 
his  labor. 

The  commencement  of  the  second  period  is  rendered  remarka- 
ble by  the  enactment  of  two  statutes,  which  have  probably  con- 
duced more  than  any  others  to  change  the  condition  of  real  property  ; 
and  at  the  same  time,  that  they  have  facilitated  its  application  to 
the  business  and  the  wants  of  real  life,  they  have  in  no  small  degree 
rendered  its  titles  intricate.  I  allude  to  the  great  statutes  of  Wills 
and  of  Uses,  in  the  reign  of  Henry  VIII.  The  former  statute 
has  crowded  our  books  of  reports  with  cases,  more  numerous  and 
more  difficult  in  construction  than  any  other  single  branch  of  the 
law.  The  latter,  followed  up  by  the  statute  of  Elizabeth  of  Chari- 
table Uses,  is  thought  by  many  to  have  laid  the  foundation  of  that 
broad  and  comprehensive  judicature,  in  which  equity  administers, 
through  its  searching  interrogatories,  addressed  to  the  consciences  of 
men,  the  most  beneficent  and  wholesome  principles  of  justice.  The 
whole  modern  structure  of  Trusts,  infinitely  diversified  as  it  is,  by 
marriage  settlements,  terms  to  raise  portions,  or  to  pay  debts,  contin- 
gent and  springing  appointments,  resulting  uses  and  implied  trusts, 
grew  out  of  this  statute,  and  the  constructions  put  upon  it.  And 
it  is  scarcely  figurative  language  to  assert,  that  the  scintilla  juris 
of  Chudleigh's  case  is  the  spark,  which  kindled  the  flame,  which 
has  burned  so  brightly  and  benignantly  in  the  courts  of  equity  in 
modern  times. 

Two  statutes,  equally  remarkable,  adorned  the  close  of  this  second 
period  ;  the  one,  the  statute  securing  the  writ  of  Habeas  Corpus,  the 
great  bulwark  of  personal  liberty  ;  the  other,  the  statute  abolishing  the 
burdensome  tenures  of  the  Feudal  Law.  These  were  the  triumphs  of 
sound  reason  and  free  inquiry  over  the  dictates  of  oppression  and  igno- 


ADDRESS    BEFORE    THE    SUFFOLK    BAR.  409 

ranee.  They  were  the  harbinger  of  better  days,  and  gave  lustre 
to  an  age,  which  was  scarcely  redeemed  from  profligacy  by  the 
purity  of  Lord  Hale,  and  was  deeply  disgraced  by  the  harsh  and 
vindictive  judgments  of  Lord  Jeffries.  Yet  through  the  whole  of 
this  period  we  may  trace  a  steady  improvement  in  the  great  de- 
partments of  the  law.  Under  the  guidance  of  Lord  Bacon,  the 
business  of  chancery  assumed  a  regular  course  ;  and,  at  the  distance 
of  two  centuries,  his  celebrated  Ordinances  continue  to  be  the  pole- 
star,  which  directs  the  practice  of  that  court.  A  more  noble 
homage  to  his  memory,  or  a  more  striking  proof  of  the  profound- 
ness of  his  genius,  and  of  the  wisdom  and  comprehensiveness  of 
bis  views,  can  scarcely  be  imagined.  And  it  may  be  truly  affirmed, 
that  his  Novum  Organum  scarcely  introduced  a  more  salutary 
change  in  the  study  of  physics  and  experimental  philosophy,  than 
his  Ordinances  did  in  the  practical  administration  of  equity.  The 
common  law,  too,  partaking  of  the  spirit  and  enterprise  of  the  times, 
gradually  shifted  and  widened  its  channels.  Courts  of  justice  were 
no  longer  engaged  in  settling  ecclesiastical  or  feudal  rights  and  ser- 
vices. The  intricacies  of  real  actions  were  laid  aside  for  the  more 
convenient  and  expeditious  trial  of  titles  by  ejectment.  Assizes 
and  writs  of  entry  fell  into  neglect,  and  the  subtilties  of  logic  were 
exchanged  for  the  more  useful  inductions  of  common  sense.  Argu- 
ments were  no  longer  buried  under  a  mass  of  learning ;  and 
reports,  instead  of  overwhelming  the  profession,  as  in  the  pages  of 
the  venerable  Plowden,  with  a  flood  of  ancient  authorities  and 
curious  analogies,  began  to  be  directed  to  the  points  in  controversy 
with  brevity  and  exactness.  Philosophy,  too,  lent  its  aid  to  illus- 
trate the  science  ;  and  the  criminal  law,  though  occasionally  dis- 
graced by  abuses,  was  softened  by  the  humanity,  illustrated  by  the 
genius,  and  methodized  by  the  labors  of  the  great  luminaries  of 
the  law. 

The  third  period  may  not  inaptly  be  termed  the  Golden  Age  of  the 
law ;  since  it  embraces  the  introduction  of  the  principles  of  com- 
mercial law,  and  the  application  of  them  with  wonderful  success  to 
the  exposition  of  the  then  comparatively  novel  contracts  of  bills  of 
exchange,  promissory  notes,  bills  of  lading,  charter  parties,  and, 
above  all,  policies  of  insurance.  Lord  Holt,  with  great  sagacity  and 
boldness,  led  the  way  to  some  of  the  most  important  improvements, 
by  his  celebrated  judgment  in  Coggs  v.  Barnard,  in  which  the  law 
of  bailments  is  expounded  with  philosophical  precision  and  fulness. 
It  is  true,  that  the  leading  maxims  are  borrowed  from  the  Roman 


410  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

law,  as  the  beautiful  treatise  of  Sir  William  Jones  sufficiently 
explains  to  the  humblest  student.  But  the  merit  of  Lord  Holt  is 
scarcely  lessened  by  this  consideration,  since  he  had  the  talent  to 
discern  their  value,  and  the  judgment  to  transfer  them  into  the 
English  code.  The  modest  close  of  his  opinion  in  this  case  shows, 
how  little  the  law  on  this  subject  was  at  that  time  settled,  and  how 
much  we  owe  to  the  achievements  of  a  single  mind.  "  I  have  said 
thus  much  "  (is  his  language)  "  on  this  case,  because  it  is  of  great 
consequence,  that  the  law  should  be  settled  on  this  point.  But  I 
don't  know,  whether  I  may  have  settled  it,  or  may  not  rather  have 
unsettled  it.  But  however  that  may  happen,  I  have  stirred  these 
points,  which  wiser  heads  in  time  may  settle."  Wiser  heads  have 
not  settled  these  points.  This  branch  of  the  law  stands  now,  at 
the  distance  of  more  than  a  century,  on  the  immovable  foundation, 
where  this  great  man  placed  it,  the  foundation  of  reason  and  jus- 
tice. And,  if  he  had  left  no  other  judgment  on  record,  this  alone 
would  justify  the  eulogy  of  an  eminent  modern  judge,  that  "  he 
was  as  great  a  lawyer  as  ever  sat  in  Westminster  Hall." 

The  doctrines  of  the  courts  of  equity  during  this  last  period 
have  attained  a  high  degree  of  perfection,  though  the  origin  of  them 
must  in  many  cases  be  admitted  to  belong  to  the  preceding  age. 
Lord  Nottingham  brought  to  the  subject  a  strong  and  cultivated 
mind,  and  pronounced  his  decrees  after  the  most  cautious  and  pains- 
taking study.  Lord  Cowper  and  Lord  Talbot  pursued  the  same 
career  with  the  genuine  spirit  of  jurists.  But  it  was  reserved  for 
Lord  Hardwicke,  by  his  deep  learning,  his  extensive  researches, 
and  his  powerful  genius,  to  combine  the  scattered  fragments  into  a 
scientific  system  ;  to  define  with  a  broader  line  the  boundaries  be- 
tween the  departments  of  the  common  law  and  chancery  ;  and  to 
give  certainty  and  vigor  to  the  principles,  as  well  as  the  jurisdiction, 
of  the  latter.  Henceforth,  equity  began  to  acquire  the  same  ex- 
actness as  the  common  law  ;  and  at  this  moment  there  is  scarcely 
a  branch  of  its  jurisprudence,  that  is  not  reduced  to  method,  and 
does  not  in  the  harmony  of  its  parts  rival  the  best  examples  of  the 
common  law.  Our  own  age  has  witnessed  in  the  labors  of  Lord 
Eldon,  through  a  series  of  more  than  twenty-five  volumes  of  re- 
ports, a  diligence,  sagacity,  caution,  and  force  of  judgment,  which 
have  seldom  been  equalled,  and  can  scarcely  be  surpassed  ;  which 
have  given  dignity,  as  well  as  finish,  to  that  curious  moral  ma- 
chinery, which,  dealing  in  an  artificial  system,  yet  contrives  to 
administer  the  most  perfect  of  human  inventions,  the  doctrines  of 
conscience  ex  cequo  ct  bono. 


ADDRESS    BEFORE    THE    SUFFOLK    BAR.  411 

There  is  another  great  name,  which  adorns  this  period,  respecting 
whom  it  is  difficult  to  speak  in  terms  of  moderated  praise,  and  still 
more  difficult  to  preserve  silence.  England,  and  America,  and  the 
civilized  world  lie  under  the  deepest  obligations  to  him.  Wherever 
commerce  shall  extend  its  social  influences  ;  wherever  justice  shall 
be  administered  by  enlightened  and  liberal  rules  ;  wherever  contracts 
shall  be  expounded  upon  the  eternal  principles  of  right  and  wrong  ; 
wherever  moral  delicacy  and  juridical  refinement  shall  be  infused 
into  the  municipal  code,  at  once  to  persuade  men  to  be  honest,  and 
to  keep  them  so  ;  wherever  the  intercourse  of  mankind  shall  aim 
at  something  more  elevated  than  that  grovelling  spirit  of  barter,  in 
which  meanness,  and  avarice,  and  fraud  strive  for  the  mastery  over 
ignorance,  credulity,  and  folly;  —  the  name  of  Lord  Mansfield  will 
be  held  in  reverence  by  the  good  and  the  wise,  by  the  honest  mer- 
chant, the  enlightened  lawyer,  the  just  statesman,  and  the  consci- 
entious judge.  The  maxims  of  maritime  jurisprudence,  which 
he  engrafted  into  the  stock  of  the  common  law,  are  not  the  exclu- 
sive property  of  a  single  age  or  nation ;  but  the  common  property 
of  all  times  and  all  countries.  They  are  built  upon  the  most 
comprehensive  principles,  and  the  most  enlightened  experience  of 
mankind.  He  designed  them  to  be  of  universal  application  ;  con- 
sidering, as  he  himself  has  declared,  the  maritime  law  to  be,  not 
the  law  of  a  particular  country,  but  the  general  law  of  nations. 
And  such  under  his  administration  it  became,  as  his  prophetic  spirit, 
in  citing  a  passage  from  the  most  eloquent  and  polished  orator  of 
antiquity,  seems  gently  to  insinuate.  "  Non  erit  alia  lex  Romas,  alia 
Athenis  ;  alia  nunc,  alia  posthac  ;  sed,  et  apud  omnes  gentes  et 
omni  tempore,  una  eademque  lex  obtinebit."  He  was  ambitious  of 
this  noble  fame,  and  studied  deeply,  and  diligently,  and  honestly 
to  acquire  it.  He  surveyed  the  commercial  law  of  the  continent, 
drawing  from  thence  what  was  most  just,  useful,  and  rational  ;  and 
left  to  the  world,  as  the  fruit  of  his  researches,  a  collection  of  gen- 
eral principles,  unexampled  in  extent  and  unequalled  in  excellence. 
The  law  of  insurance  was  almost  created  by  him  ;  and  it  would  be 
difficult  to  find  a  single  leading  principle  in  the  beautiful  system, 
that  surrounds  and  protects  the  commerce  of  our  times,  which  may 
not  be  traced  back  to  the  judgments  of  this  surprising  man.  Of 
him,  it  cannot  be  said,  "Stat  magni  nominis  umbra."  His  character 
as  a  statesman  and  an  orator,  as  the  rival,  and  the  equal,  of  Chat- 
ham and  Camden,  would  immortalize  him.  But  the  proudest 
monument  of  his  fame  is  in  the  volumes  of  Burrow,  and  Cowper, 


412  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

and  Douglass,  which  we  may  fondly  hope  will  endure  as  long  as 
the  language,  in  which  they  are  written,  shall  continue  to  instruct 
mankind. 

I  have  been  drawn  into  these  remarks  on  the  character  of  Lord 
Mansfield,  beyond  the  scope  of  my  original  intention,  by  my  ex- 
treme solicitude  to  impress  the  younger  members  of  the  profession 
with  a  due  sense  of  his  learning  and  his  labors.  It  appears  to  me, 
that  his  judgments  should  not  be  merely  referred  to  and  read,  on 
the  spur  of  particular  occasions,  but  should  be  studied,  as  models  of 
juridical  reasoning  and  eloquence.  I  know  not,  where  a  student 
can  learn  so  much,  or  so  well,  as  in  the  reports,  which  I  have  named  ; 
and  there  is  scarcely  a  sentence,  which  dropped  from  his  lips,  which 
may  not  prove  of  permanent  utility  to  the  profession.  Our  young 
men  of  the  present  day  are  apt  to  confine  their  reading  too  much 
to  elementary  treatises.  The  utility  of  these  cannot  be  doubted. 
But  the  reports  are  the  true  repositories  of  the  law ;  and  of  these 
none  are  more  interesting  and  convincing,  than  those,  which  are 
graced  by  the  persuasive  judgments  of  Lord  Mansfield. 

The  principal  improvements  in  the  law,  during  the  period,  which 
has  last  passed  under  review,  may  be  summed  up  under  the  following 
heads.      1.  A  more  enlarged  and  liberal  interpretation  of  contracts. 

2.  The  adoption  of  the  great  principles  of  commercial  law,  bor- 
rowed from  the  usages  of  merchants,  the  dissertations  and  commen- 
taries of  foreign  jurists,  and  the  inductions  of  philosophical  inquiry. 

3.  The  enlargement  of  the  remedy  by  assumpsit,  moulding  it,  as 
in  the  action  for  money  had  and  received,  to  the  most  important 
purposes  of  a  bill  in  equity.  4.  The  reduction  of  many  doctrines 
of  the  law  to  systematical  accuracy  by  rejecting  anomalies,  and 
defining  and  limiting  their  application  by  the  test  of  general  rea- 
soning. 

Without  doubt,  many  of  these  changes  were  brought  about  by 
the  enterprise  of  commerce  and  the  philosophizing  spirit  of  the 
times.  The  former  rendered  indispensable  the  introduction  of  many 
general  principles  to  regulate  the  complicated  business  of  trade, 
and  to  protect  and  encourage  navigation.  The  latter,  by  accustom- 
ing the  profession  to  more  comprehensive  argumentations  and  more 
perfect  generalizations,  gradually  wore  away  that  exclusive  devo- 
tion to  technical  rules,  and  ancient  practices,  and  the  narrow  policy 
of  the  old  law,  which  had  been  for  ayes  the  reproach  of  the 
benchers  of  Westminster  Hall.  The  common  law  had  its  origin  in 
ignorant  and  barbarous  ages  ;  it  abounded  with  artificial  distinctions 


ADDRESS    BEFORE    THE    SUFFOLK    BAR.  413 

and  crafty  subtilties,  partly  from  the  scholastic  habits  of  its  early 
clerical  professors,  and  partly  from  its  subserviency  to  the  narrow 
purposes  of  feudal  polity.  When  this  polity  began  to  decline,  the 
mass  of  its  principles  was  so  interwoven  into  the  texture  of  the 
law,  and  so  consecrated  by  authority,  that  it  became  dangerous,  if 
not  impracticable,  to  disentangle  it.  There  was,  therefore,  a  natural 
jealousy  of  changes,  lest  they  should  work  mischiefs  in  the  venera- 
ble fabric.  It  was  not  until  the  current  of  society  had  taken  a  new 
direction,  and  commerce  had  worn  its  channels  wide  and  deep 
through  the  whole  country,  that  the  necessities  of  trade  compelled 
the  profession  to  look  abroad  for  doctrines  of  more  general  applica- 
tion. Yet  it  cannot  be  denied,  that  the  progress  of  improvement 
was  slow,  and  that  the  genius  of  Lord  Mansfield,  by  outstripping 
that  of  the  age  at  least  half  a  century,  accomplished  with  brilliant 
success  what  a  few  may  have  ventured  to  hope  for,  but  no  one 
before  him  was  bold  enough  to  execute.  The  remarks  of  Mr. 
Justice  Buller,  a  proud  name  in  the  English  law,  in  the  case  of 
Lickbarrow  v.  Mason,  fully  confirm  the  views,  that  I  have  attempted 
to  unfold.  "  Before  that  period,"  says  he,  "  wre  find,  that  in  courts 
of  law  all  the  evidence  in  mercantile  cases  was  thrown  together  ; 
they  were  left  generally  to  the  jury,  and  they  produced  no  estab- 
lished principle.  From  that  time,  we  all  know,  the  great  study  has 
been  to  find  some  certain  general  principles,  which  shall  be  known  to 
all  mankind,  not  only  to  rule  the  particular  case,  but  to  serve  as  a 
guide  for  the  future.  Most  of  us  have  heard  these  principles 
stated,  reasoned  upon,  enlarged,  and  explained,  till  we  have  been 
lost  in  admiration  of  the  strength  and  stretch  of  the  human  under- 
standing." 

Although  the  causes,  to  which  I  have  alluded,  contributed  in  a 
high  degree  to  the  advancement  of  the  law  ;  yet  there  is  another, 
which,  in  my  judgment,  had  a  decided,  though  silent,  operation  in 
its  favor.  I  refer  to  the  change  in  the  tenure  of  office,  by  which 
the  judges,  instead  of  being  dependent  on  the  pleasure  of  the 
Crown,  enjoyed  their  offices  during  good  behaviour.  This  measure 
of  consummate  wisdom  forms  a  part  of  the  solemn  act  of  settle- 
ment, which  fixed  the  succession  of  the  throne  of  England  in  the 
house  of  Hanover,  and  was  adopted,  not  merely  to  secure  the  per- 
sonal independence  of  the  judges,  but  the  purity  and  independence 
of  the  law.  The  first  effect  was  to  check  the  undue  influence  of 
the  Crown  through  its  judicial  patronage  ;  the  next,  and  not  least 
important,  was  to  restrain  the  tumultuary  excitements  of  the  people. 


414  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

Men,  for  the  most  part,  are  willing  to  submit  to  the  laws,  when  faith- 
fully and  impartially  administered.  If  they  are  satisfied,  that  the 
judges  are  incorruptible,  they  acquiesce  in  their  decisions,  even 
when  they  may  suspect  them  to  be  erroneous,  as  the  necessary 
homage,  by  which  their  own  rights  and  liberties  are  permanently 
secured.  But  if  the  fountain  of  justice  is  impure,  and  sends  forth 
bitter  waters,  stained  by  influences,  which  are  not  avowed,  and  yet 
are  scarcely  covered  ;  if  judges  are  removed  at  pleasure,  and  ap- 
pointed at  pleasure,  to  gratify  a  favorite  or  a  faction,  an  arrogant 
minister  or  a  violent  House  of  Commons ;  it  is  easy  to  foresee,  that 
jealousy  will  lead  to  distrust,  and  distrust  to  hatred,  and  hatred  to 
disobedience,  and  disobedience  to  resistance,  which,  if  it  stops  short 
of  treason,  will  yet  utter  itself  in  deep  complaints,  until  public 
confidence  is  universally  shaken,  and  armies  become  necessary  to 
support  the  execution  of  the  laws.  Considerations  of  this  sort 
have  always  impressed  me  with  the  belief,  from  the  first  moment, 
that  I  ventured  into  the  deeper  studies  of  the  law,  that  the  inde- 
pendence of  the  judges  is  the  great  bulwark  of  public  liberty,  and 
the  great  security  of  property  ;  and  that  the  Revolution  of  1688 
would  have  been  but  a  vain  and  passing  pageant,  a  noble,  but  in- 
effectual, struggle  against  prerogative,  if  the  triumph  of  its  principles 
had  not  been  secured  by  this  practical  means  of  enforcing  them. 
Throughout  the  reigns  of  both  the  Charleses  and  both  the  Jameses, 
it  is  melancholy  to  remark  the  perpetual  changes  on  the  bench, 
induced  by  favoritism,  or  discontent,  or  an  attempt  to  overawe  the 
courts.  The  noble  answer  of  Lord  Coke  to  the  inquiry  of  the 
king,  in  the  dispute  about  commendams,  what  he  would  do,  if  the 
Crown  in  any  case  before  him  required  the  judges  to  stay  proceed- 
ings, "  that  he  would  do  that,  which  would  befit  a  judge  to  do,"  is 
worthy  of  everlasting  remembrance.  But  it  was  his  solitary  an- 
swer. To  the  disgrace  of  the  age,  all  the  other  judges,  intimidated 
by  the  king  and  his  haughty  chancellor,  "  the  wisest,  brightest, 
meanest  of  mankind,"  promised  implicit  submission  to  the  com- 
mands of  the  Crown.  And  even  Lord  Coke,  for  his  conduct  on 
other  occasions,  drew  from  the  king  the  bitter,  though  perhaps 
unjust,  rebuke,  "  that  he  was  the  fittest  instrument  for  a  tyrant,  that 
ever  was  in  England."  In  the  reign  of  Charles  II.  the  conduct  of 
the  Crown  was  more  openly  profligate,  and  its  influence  was  exerted 
to  affect  the  judgments  of  the  courts,  even  in  private  suits.  It  is 
matter  of  history,  that  Sir  Edmund  Saunders,  after  having  advised 
the  proceedings  in  the  Quo  Warranto   against  the  city  of  London, 


ADDRESS    BEFOHK    THE    SUFFOLK    BAB.  415 

was  promoted  to  the  chief  justiceship  of  the  King's  Bench,  not 
on  account  of  his  talents,  his  learning,  or  his  virtues,  (though  great,) 
but  on  account  of  his  known  devotion  to  the  interests  of  the 
Crown. 

Such  are  some  of  the  more  offensive  forms,  under  which  the  tenure 
of  oflices  during  pleasure  will  sometimes  exhibit  men,  from  whose 
elevation  of  character  better  things  might  be  expected.  But  the  more 
silent  and  unobtrusive  influence  of  popular  dependence,  though  less 
striking  to  the  vulgar  eye,  is  not  less  subversive  of  the  great  purposes 
of  justice.  It  is,  indeed,  more  dangerous  to  the  liberty  and  property  of 
the  people;  since  it  assumes  the  attractive  appearance  of  obedience 
to  the  will  of  the  majority  ;  and  thus,  without  exciting  jealousy  or 
alarm,  it  tramples  under  foot  all  those,  who  refuse  to  obey  the  idol  of 
the  day.  How  can  it  be  reasonably  expected,  that  the  law  should 
flourish  as  a  science,  when  the  judges  are  doomed  to  resist  the 
humors  of  the  prince,  or  the  clamors  of  the  populace,  at  the  peril  of 
those  stations,  which  may  constitute  their  only  refuge  from  pecuniary 
distress  ?  If  the  old  tenure  of  office  had  remained,  we  might  still 
have  possessed  many  valuable  judgments  of  the  later  common-law 
judges.  But  we  should  have  searched  in  vain  for  those  bright  displays 
of  independence  and  virtue,  for  those  beautiful  arguments  in  defence 
of  private  rights,  for  those  finished  illustrations  of  pure  and  exalted 
equity,  and  for  those  comprehensive  commentaries  upon  commer- 
cial law,  which  have  immortalized  their  memories.  If  their  places 
were  of  any  value,  they  must  have  resigned  them,  or  remained  the 
timid  followers  of  the  old  law,  without  the  ambition  to  improve  its 
doctrines,  or  the  hardihood  to  encounter  the  alarm  of  innovation. 
Lord  Mansfield  would  scarcely  have  sustained  himself  on  the 
bench,  in  the  midst  of  so  many  political  and  professional  foes,  to 
utter  the  thrilling  declaration,  "  I  wish  for  popularity  ;  but  it  is  that 
popularity,  which  follows  ;  not  that,  which  is  run  after.  It  is  that 
popularity,  which  sooner  or  later  never  fails  to  do  justice  to  the 
pursuit  of  noble  ends  by  noble  means.  I  will  not  do  that,  which  my 
conscience  tells  me  is  wrong  upon  this  occasion,  to  gain  the  huzzas 
of  thousands,  or  the  daily  praise  of  all  the  papers,  which  come 
from  the  press.  I  will  not  avoid  doing  that,  which  I  think  is  right, 
though  it  should  draw  on  me  the  whole  artillery  of  libels,  all  that 
falsehood  and  malice  can  invent,  or  the  credulity  of  a  deluded  pop- 
ulace can  swallow.  1  can  say,  with  another  great  magistrate,  upon 
an  occasion  and  under  circumstances  not  unlike,  '  Ego  hoc  animo 
semper  fui,  ut  invidiam  virtute  partam,  gloriam,  non  invidiam, 
putarem.'  " 


416  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

The  review,  which  has  been  hitherto  sketched,  of  the  history  of 
the  common  law,  however  imperfectly,  is  confined  altogether  to 
British  jurisprudence.  Before  the  American  Revolution,  from  a 
variety  of  causes,  which  it  is  not  difficult  to  enumerate,  our  progress 
in  the  law  was  slow,  though  not  slower,  perhaps,  than  in  the  other 
departments  of  science.  The  resources  of  the  country  were  small, 
the  population  was  scattered,  the  business  of  the  courts  was  limited, 
the  compensation  for  professional  services  was  moderate,  and  the 
judges  were  not  generally  selected  from  those,  who  were  learned 
in  the  law.  The  colonial  system  restrained  our  foreign  commerce  ; 
and,  as  the  principal  trade  was  to  or  through  the  mother  country, 
our  most  important  contracts  began  or  ended  there.  That  there 
were  learned  men  in  the  profession  in  those  times,  it  is  not  necessary 
to  deny.  But  the  number  was  small.  And  from  the  nature  of  the 
business,  which  occupied  the  courts,  the  knowledge  required  for 
common  use  was  neither  very  ample,  nor  very  difficult.  The  very 
moderate  law  libraries,  then  to  be  found  in  the  country,  would  com- 
pletely establish  this  fact,  if  it  could  be  seriously  controverted. 
Our  land  titles  were  simple.  Our  contracts  principally  sprung 
up  from  the  ordinary  relations  of  debtor  and  creditor.  Our  torts 
were  cast  in  the  common  mould  of  trespasses  on  lands  or  to  goods, 
or  personal  injuries;  and  the  most  important  discussions  grew  out  of 
our  provincial  statutes.  Great  lawyers  do  not  usually  flourish  under 
such  auspices,  and  great  judges  still  more  rarely.  Why  should  one 
accomplish  himself  in  that  learning,  which  is  more  of  curiosity  than 
use  ?  which  neither  adds  to  fame  nor  wealth  ?  which  is  not  publicly 
sought  for  or  admired  ?  which  devotes  life  to  pursuits  and  refine- 
ments, not  belonging  to  our  own  age  or  country  ?  The  few  manu- 
scripts of  adjudged  cases,  which  now  remain,  confirm  these  remarks. 
If,  here  and  there,  a  learned  argument  appears,  it  strikes  us  with 
surprise,  rather  from  its  rarity  than  its  extraordinary  authority.  In 
the  whole  series  of  our  reports,  there  are  very  few  cases,  in  which 
the  ante-revolutionary  law  has  either  illustrated  or  settled  an  adju- 
dication. 

The  progress  of  jurisprudence  since  the  termination  of  the  War 
of  Independence,  and  especially  within  the  last  twenty  years,  has 
been  remarkable  throughout  all  America.  More  than  one  hundred 
and  fifty  volumes  of  reports  are  already  published,  containing  a  mass 
of  decisions,  which  evince  uncommon  devotion  to  the  study  of  the 
law,  and  uncommon  ambition  to  acquire  the  highest  professional 
character.     The  best  of  our  reports  scarcely  shrink  from  a  com- 


ADDRESS    BEFORE    THE    SUFFOLK    JJAR.  417 

parison  with  those  of  England  in  the  corresponding  period  ;  and 
even  those  of  a  more  provincial  cast  exhibit  researches  of  no  mean 
extent,  and  presage  future  excellence.  The  danger,  indeed,  seems 
to  be,  not  that  we  shall  hereafter  want  able  reports,  but  that  we 
shall  be  overwhelmed  by  their  number  and  variety. 

In  this  respect,  our  country  presents  a  subject  of  very  serious 
contemplation  and  interest  to  the  profession.  There  are  now 
twenty-four  states  in  the  Union,  in  all  of  which,  except  Louisiana, 
the  common  law  is  the  acknowledged  basis  of  their  jurisprudence. 
Yet  this  jurisprudence,  partly  by  statute,  partly  by  judicial  inter- 
pretations, and  partly  by  local  usages  and  peculiarities,  is  perpetually 
receding  farther  and  farther  from  the  common  standard.  While  the 
states  retain  their  independent  sovereignties,  as  they  must  continue 
to  do  under  our  federative  system,  it  is  hopeless  to  expect,  that  any 
greater  uniformity  will  exist  in  the  future  than  in  the  past.  Nor 
do  I  know,  that,  so  far  as  domestic  happiness  and  political  con- 
venience are  concerned,  a  greater  uniformity  would  in  most  respects 
be  desirable.  The  task,  however,  of  administering  justice  in  the 
state  as  well  as  national  courts,  from  the  new  and  peculiar  relations 
of  our  system,  must  be  very  laborious  and  perplexing  ;  and  the 
conflict  of  opinion  upon  general  questions  of  law,  in  the  rival  juris- 
dictions of  the  different  states,  will  not  be  less  distressing  to  the 
philosophical  jurist,  than  to  the  practical  lawyer. 

It  may  not  be  without  utility  to  glance,  for  a  few  moments,  at 
some  of  those  circumstances,  in  which  the  coincidences  and  differ- 
ences are  most  striking  and  instructive. 

1.  And  first,  as  to  the  regulation  of  the  transfers  of  property. 
These  are  either  by  the  descent  and  distribution  of  estates,  by 
conveyances  inter  vivos,  or  by  testamentary  dispositions.  As  to 
the  first,  so  far  as  my  knowledge  extends,  the  canons  of  descent  in 
the  direct  line  are  the  same  in  all  the  states.  In  all  the  states  the 
children  and  lineal  descendants  inherit  in  coparceny,  without  any 
distinction  as  to  primogeniture  or  sex.  In  descents  in  the  collateral 
line,  there  are  some  peculiar  modifications  in  almost  all  the  states. 
In  some  states  there  is  a  difference  between  the  half  and  the  whole 
blood  ;  in  others,  a  difference  between  inheritances  ex  parte  pa- 
tcrnd  and  ex  parte  maternd;  in  others,  a  difference  in  the  order  of 
succession  and  representation.  From  the  genius  of  our  political 
institutions,  as  well  as  the  habits  of  the  people,  there  is  every 
probability,  that  inheritances  will  continue  to  descend  substantially 
in  the  same  manner,  as  long  as  our  free  governments  endure.  An 
58 


418  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

attempt  to  establish  the  English  canons  of  descent  could  hardly 
succeed,  but  upon  the  ruins  of  all  those  institutions,  which  are  con- 
sidered the  best  protection  of  a  republican  government.  Then,  as 
to  conveyances  inter  vivos.  Lands  are  universally  conveyed  by  a 
deed,  acknowledged  by  the  parties  before  some  competent  magis- 
trate, and  recorded  in  some  public  records  kept  for  the  registry  of 
conveyances  of  this  nature.  The  ceremony  of  livery  of  seizin  is 
obsolete,  if,  indeed,  it  have  any  where  a  legal  entity.  The  common 
law  forms  of  conveyance  are  in  general  use,  and  the  statute  of 
Uses  being  recognised  as  a  part  of  the  common  or  statute  law  of 
the  states,  the  English  doctrines  on  these  subjects  are  generally 
adopted.  As  to  testamentary  dispositions.  Lands  are  universally 
disposable  by  will.  The  ceremonies,  by  which  solemn  testaments 
are  evidenced  in  most  of  the  states,  do  not  materially  differ  from 
the  English  statute  on  this  subject,  in  Virginia  and  Kentucky, 
however,  a  will  wholly  written  and  signed  by  the  testator  is  good, 
although  there  is  no  subscribing  witness.  In  Louisiana  the  like 
provision  exists  ;  and  it  is  to  be  observed,  that  the  preceding  re- 
marks are  in  general  inapplicable  to  this  latter  state,  whose  juris- 
prudence being  founded  on  the  civil  law,  the  forms  of  conveyances, 
whether  they  be  donations  inter  vivos,  or  donations  causa  mortis, 
are  regulated  in  general  conformity  to  the  rule  of  that  law. 

2.  As  to  commercial  law.  From  mutual  comity,  from  the  natu- 
ral tendency  of  maritime  usages  to  assimilation,  and  from  mutual 
convenience,  if  not  necessity,  it  may  reasonably  be  expected,  that 
the  maritime  law  will  gradually  approximate  to  a  high  degree  of 
uniformity  throughout  the  commercial  world.  This  is,  indeed,  in 
every  view  exceedingly  desirable.  Europe  is  already,  by  a  silent, 
but  steady  course,  fast  approaching  to  that  state,  in  which  the  same 
commercial  principles  will  constitute  a  part  of  the  public  law  of  all 
its  sovereignties.  The  unwritten  commercial  law  of  England  at 
this  moment  differs  in  no  very  important  particulars  from  the 
positive  codes  of  France  and  Holland.  Spain,  Portugal,  and  the 
Italian  States,  the  Hanseatic  Confederacy,  and  the  Powers  of  the 
North,  have  adopted  a  considerable  part  of  the  same  system.  And 
the  general  disposition  in  the  maritime  states,  to  acknowledge  the 
superiority  of  the  courts  and  code  of  England,  leaves  little  doubt, 
that  their  own  local  usages  will  soon  yield  to  her  more  enlightened 
doctrines.  What  a  magnificent  spectacle  will  it  be,  to  witness  the 
establishment  of  such  a  beautiful  system  of  juridical  ethics  ;  to 
realize,  not  the   oppressive  schemes  of  holy  alliances   in  a  general 


ADDRESS    BEFORE    THE     SUFFOLK    BAR.  '119 

conspiracy  against  the  rights  of  mankind,  but  the  universal  empire 
of  juridical  reason,  mingling  with  the  concerns  of  commerce 
throughout  the  world,  and  imparting  its  beneficent  light  to  the  dark 
regions  of  the  poles,  and  the  soft  and  luxurious  climates  of  the 
tropics  !  Then,  indeed,  would  be  realized  the  splendid  visions  of 
Cicero,  dreaming  over  the  majestic  fragments  of  his  perfect  repub- 
lic ;  and  Hooker's  sublime  personification  of  the  law  would  stand 
forth  almost  as  embodied  truth,  for  "all  things  in  heaven  and  earth 
would  do  her  homage,  the  very  least  as  feeling  her  care,  and  the 
greatest  as  not  exempted  from  her  power." 

The  commercial  law  of  the  Atlantic  states  has,  indeed,  already 
attained  to  a  very  striking  similarity  in  its  elements.  Upon  the 
subject  of  insurance  there  is  no  known  difference  founded  on  local 
usages  or  statutes.  If  the  law  be  differently  administered,  it  is  not 
because  there  is  any  intention  to  deviate  from  the  general  doctrines 
of  that  law,  but  because  the  nature  and  extent  of  those  doctrines 
have  been  differently  understood.  In  all  the  states  the  same  law 
prevails  as  to  contracts  of  shipping  and  affreightment.  In  most  of 
the  states  bills  of  exchange  and  promissory  notes  are  negotiable, 
and  rest  upon  the  principles,  which  since  the  statute  of  Anne  have 
won  their  way  into  the  common  law.  Virginia  affords  the  most 
striking  exception  to  this  remark  ;  for,  there,  a  limited  negotiability 
only  is  recognised  by  law,  and  parties,  who  are  remote  endorsers, 
have  no  remedy  against  remote  endorsers,  except  by  a  suit  in  equity. 
Massachusetts,  as  far  as  I  know,  stands  alone  in  her  local  usage  of 
denying  days  of  grace  to  promissory  notes,  unless  expressed  on  the 
face  of  the  contract.  And  it  is  seriously  wished,  that  by  a  legisla- 
tive act  we  might  fairly  get  rid  of  this  anomaly,  which  has  not  a 
single  ground,  either  of  convenience,  or  policy,  or  antiquity,  to 
recommend  it.*  There  are  some  few  other  dissonances  from  the 
general  commercial  law,  which  have  existence  in  some  of  the  states  ; 
but  it  would  serve  no  important  purpose  to  explain  them  at  this 
time. 

3.  As  to  remedies,  it  would  be  endless  to  point  out  the  coin- 
cidences and  differences  between  the  various  states.  Remedies 
are  necessarily  modified  by  the  wants  and  manners  of  the  com- 
munity ;  and  processes,  which  from   habit  are  thought  useful  and 


*  Since  this  address  was  delivered,  a  statute  has  been  passed  in  Massachusetts, 
providing  that  grace  shall  be  allowed  on  all  promissory  notes,  orders,  and  drafts, 
payable  at  a  future  day  certain,  in  which  there  is  not  an  express  stipulation  to  the 
contrary.     St.  Mass.  1824,  c.  130. 


420  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

convenient  in  one  state  of  society,  are  rejected  as  burdensome  and 
injurious  in  another.  In  several  of  the  New  England  states  the 
attachment  of  real  and  personal  property  is  allowed  upon  mesne 
process,  not  merely  to  coerce  the  appearance  of  the  defendant, 
but  to  secure  a  final  satisfaction  of  the  judgment,  if  the  plain- 
tiff recovers  in  the  suit.  This  process,  except  so  far  as  it  be- 
longs to  foreign  attachments,  (analogous  to  our  trustee  process,) 
is  utterly  unknown  elsewhere  ;  and  the  existence  of  it  among  our- 
selves is  contemplated  with  surprise  and  regret  by  those,  who  are 
accustomed  to  the  general  processes  of  the  common  law.  It  is 
thought  a  hardship,  that  any  person  should  be  liable  to  be  stripped 
of  his  property,  before  it  is  ascertained  judicially,  that  a  good  cause 
of  action  exists  against  him  ;  and  the  danger  of  abuse  has  been 
dwelt  upon  with  much  emphasis  and  force.  And  yet,  perhaps,  the 
annals  of  no  country  present  fewer  instances  of' abuse,  than  those 
of  the  New  England  states,  which  allow  this  mode  of  proceeding. 
Personal  arrests  are  rare  here,  even  when  property  is  not  to  be 
found  ;  and  it  is  not  perhaps  hazarding  too  much  to  assert,  that  the 
writ  of  capias  has  subjected  more  persons  to  wrongful  imprisonment, 
than  the  unjust  attachment  of  property  has  to  serious  loss  and 
inconvenience.  Yet  it  cannot  be  denied,  that  the  latter  process  is 
liable  to  great  abuses,  and  that  our  exemption  from  them  has  re- 
sulted principally  from  the  sound  discretion  and  integrity  of  the 
Bar.  And  it  is  most  desirable,  that  some  summary  practice, 
analogous  to  that  of  discharging  on  common  bail,  should  be  au- 
thorized by  the  legislature,  so  that  fraud,  and  circumvention,  and 
oppression,  may  find  it  more  difficult  to  obtain  undue  advantages, 
and  compel  undue  compromises  under  the  influence  of  this  dreaded 
process. 

The  remedy  for  trying  land-titles  in  all  the  states  in  the  Union, 
except  Louisiana  and  some  of  the  New  England  states,  is  the 
English  action  of  ejectment.  It  is  scarcely  modified  even  in  its 
slightest  forms  ;  and  John  Doe  and  Richard  Roe  are  the  familiar 
guests,  hospites  antiqui  et  constantes,  of  the  courts  on  the  pictu- 
resque banks  of  the  Hudson,  the  broad  expanse  of  the  Delaware 
and  Chesapeake,  the  sunny  regions  of  the  South,  and  the  fertile 
vales  and  majestic  rivers  of  the  West.  In  Louisiana,  the  civil  law 
governs  all  judicial  proceedings,  and  administers  all  remedies  in 
personam  and  in  rem.  And  I  cannot  help  paying  my  humble 
homage  to  the  excellence  of  this  code,  which,  adapting  its  remedies 
to  the  exigency  of  the  case,  gives  complete  relief  without  tram- 


ADDRESS    BEFORE    THE    SUFFOLK    BAR.  4*21 

moiling  itself  with  prescribed  forms,  which  often  perplex,  and  some- 
times defeat,  the  ends  of  justice.  In  one  or  two  of  the  adjoining 
states,  the  old  anomalous  proceeding,  known  as  a  plea  in  eject- 
ment, still  prevails.  The  use  of  writs  of  entry  for  the  trial  of  land- 
titles  is,  I  believe,  unknown,  except  in  Massachusetts,  Maine,  and 
New  Hampshire.  Whether  we  have  derived  any  important  benefit 
from  the  revival  of  the  old  forms  of  proceeding  in  real  actions  is  a 
question,  upon  which  wise  men  and  sound  lawyers  may  probably 
disagree.  If  we  have  disembarrassed  them  of  some  troublesome 
appendages  and  some  artificial  niceties,  and  rendered  them  more 
attractive  by  the  simplicity  of  their  structure  ;  still  it  must  be  con- 
fessed, that  they  are  not  easily  moulded  to  all  the  uses,  which 
modern  conveyances  and  devises  render  convenient  and  necessary. 
The  abandonment  of  these  forms  in  England,  from  a  general  sense 
of  their  inadequacy  to  the  purposes  of  justice,  and  the  adoption 
there,  as  well  as  in  most  of  the  American  states,  of  the  action  of 
ejectment,  which  has  been  ascertained  by  experience  to  be  a  per- 
fect and  convenient  remedy,  do  certainly  carry  a  weight  of  authority 
against  our  own  practice,  which,  if  it  be  not  difficult  to  resist,  it 
would  at  least  be  safe  to  follow. 

4.  As  to  the  structure  of  land-titles,  there  is  a  considerable 
diversity  in  the  states,  and  in  several  of  them  a  great  departure 
from  the  simplicity  and  certainty  of  those  derived  under  the  com- 
mon law.  I  am  not  aware,  that  in  any  part  of  New  England  any 
serious  difficulties  are  to  be  found  on  this  subject,  all  titles  having 
had  their  origin  in  separate  grants,  derived  directly  from  the  govern- 
ment or  confirmed  by  it,  and  having  the  usual  formalities  and 
certainty  of  grants  of  the  crown  at  common  law,  or  of  grants  by 
private  legislative  acts.  The  only  questions,  which  have  been 
much  litigated,  are  those  of  boundary,  which  may  and  do  ordinarily 
arise  under  grants  between  private  persons ;  and  of  these  there  have 
been  few  of  any  considerable  magnitude. 

Far  different  has  been  the  course  of  proceeding  in  some  other  parts 
of  the  Union.  Titles  there  have  originated  in  general  laws,  under 
which  any  person  might  appropriate  the  property  of  the  state,  by  fol- 
lowing the  regulations  pointed  out  by  certain  statutable  provisions. 
These  provisions  are  very  complex,  and  embrace  a  variety  of  stages 
of  title,  in  each  of  which  the  purchaser  is  obliged  to  observe  great  pre- 
cision, or  his  rights  may  be  postponed  to  a  puisne  holder  or  claimant. 
As,  therefore,  the  titles  stand  upon  general  laws,  and  by  taking  steps 
to  acquire  them  inchoate  rights  are  obtained,  or  priorities  secured, 


422  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

before  the  titles  are  consummated  by  grants  from  the  government, 
many  very  difficult  questions  have  grown  up,  as  to  the  nature, 
extent,  validity,  and  priority  of  conflicting  titles.  A  regular  grant 
or  patent  from  the  government  is  no  security  against  other  claimants, 
although  it  should  happen  to  be  prior  in  point  of  date  to  all  others. 
It  is  liable  to  be  overreached  and  defeated,  sometimes  at  law  and 
sometimes  in  equity,  according  to  the  local  jurisprudence,  by  prior 
inchoate  rights  or  equitable  claims,  whether  arising  under  preemp- 
tions, or  settlements,  or  entries,  or  other  matters,  which  have  been 
held  to  confer  upon  an  adverse  claimant  a  legal  preference. 

These  remarks  apply  with  considerable  force  to  the  land  laws  of 
Pennsylvania,  Maryland,  North  Carolina,  and  Tennessee.  But  it  is 
in  Virginia,  and  more  especially  in  Kentucky,  which  derives  its  titles 
under  the  Virginia  land  laws,  that  they  are  realized  in  their  fullest 
extent.  The  system  of  land-titles  in  Kentucky  is,  indeed,  one  of 
the  most  abstruse  branches  of  local  jurisprudence,  built  up  on  arti- 
ficial principles,  singularly  acute  and  metaphysical,  and  quite  as 
curious  and  intricate,  as  some  of  the  higher  doctrines  of  contingent 
remainders  and  executory  devises.  It  affords  an  illustrious  example 
of  human  infirmity  and  human  ingenuity  :  of  human  infirmity,  in  the 
legislative  supposition,  that  the  great  statute,  on  which  it  rests,  was 
so  certain  as  in  a  great  measure  to  preclude  future  litigation  ;  of 
human  ingenuity,  in  overcoming  obstacles  apparently  insurmountable, 
by  devising  approximations  to  certainty  in  descriptions  strangely 
vague  and  inaccurate,  thus  preserving  the  legislative  intention,  and 
yet  promoting  the  great  purposes  of  justice.  The  vice  of  the 
original  system  consisted  in  enabling  any  persons  to  appropriate  the 
lands  of  the  state  by  entries  and  descriptions  of  their  own,  without 
any  previous  survey  under  public  authority,  and  without  any  such 
boundaries  as  were  precise,  permanent,  and  unquestionable  ;  and 
the  issuing  of  grants  upon  such  entries,  without  any  inquiry  as  to 
the  true  nature,  description,  and  survey  of  the  lands,  and  without 
any  attempt  to  prevent  duplicate  grants  of  the  same  property.  If 
we  consider,  that  Kentucky  was  at  this  time  a  wilderness,  traversed 
principally  by  hunters  ;  that  many  places  must  have  been  but  very 
imperfectly  known  even  to  them,  and  must  have  received  dif- 
ferent appellations  from  occasional  and  disconnected  visitants  ;  if  we 
consider,  that  the  lands  were  rich,  and  the  spirit  of  speculation  was 
pushed  to  a  most  extravagant  extent,  and  that  the  spirit  of  fraud,  as 
is  but  too  common,  followed  close  upon  the  heels  of  speculation ;  if 
we  consider  the  infinite  diversity,  which,  under  such  circumstances, 


ADDRESS    BEFORE    THE    SUFFOLK    BAR.  423 

must  unavoidably  exist  in  the  descriptions  of  the  appropriated  tracts 
of  land,  arising  from  ignorance,  or  carelessness,  or  innocent  mistake, 
or  fraud,  or  personal  rashness  ;  —  we  ought  not  to  be  surprised  at 
the  fact,  that  the  best  part  of  Kentucky  is  oppressed  by  conflicting 
titles,  and  that  in  many  instances  there  are  three  layers  of  them 
lapping  on  or  covering  each  other.  The  statute,  to  which  I  have 
alluded,  required,  that  the  description  in  the  original  entry  should 
be  so  certain,  that  other  purchasers  might  be  able  to  appropriate 
the  adjacent  residuum.  The  description  of  the  tract  might  fail  in 
two  particulars.  1.  It  might  be  bounded  by  known  objects  or 
boundaries,  but  yet  so  general  and  imperfect,  that  the  description 
might  equally  well  suit  different  tracts  of  land,  and  thus  want  what 
has  been  technically  called  "  identity."  2.  Or  the  boundaries 
might  refer  to  objects  so  universal  as  to  defy  all  certainty,  or  to 
objects  not  generally  known  at  the  time  by  the  particular  names 
given  to  them,  or  known  generally  by  another  name  ;  and  then  the 
description  would  be  fatally  defective  for  want  of  what  is  technically 
called  "  notoriety."  Time  would  fail  me  to  enumerate  the  doc- 
trines, which  have  started  from  this  origin,  or  to  go  over  other 
peculiarities  of  the  system.  Perhaps  human  genius  has  been  rarely 
more  severely  tasked,  or  more  fairly  rewarded,  than  in  its  labors  on 
this  occasion.  The  land  law  of  Kentucky,  while  it  stands  alone  in 
its  subtile  and  refined  distinctions,  has  attained  a  symmetry,  which 
at  this  moment  enables  it  to  be  studied  almost  with  scientific  pre- 
cision. But  ages  will  probably  elapse,  before  the  litigations  founded 
on  it  will  be  closed.  And  so  little  assistance  can  be  gained  from  the 
lights  of  the  common  law  for  its  comprehension,  that,  to  the  lawyers 
of  other  states,  it  will  for  ever  remain  an  unknown  code  with  a 
peculiar  dialect,  to  be  explored  and  studied,  like  the  jurisprudence 
of  some  foreign  nation. 

In  order  to  avoid  such  serious  evils,  the  government  of  the 
United  States,  with  a  wisdom  and  foresight,  which  entitle  it  to  the 
highest  praise,  has,  in  the  system  of  land  laws,  which  regulate  the 
sales  of  its  own  territorial  demesnes,  given  great  certainty,  sim- 
plicity, and  uniformity,  to  the  titles  derived  under  it.  With  a  few 
unimportant  exceptions,  all  lands  are  surveyed  before  they  are 
offered  for  sale.  They  are  surveyed  in  ranges,  and  are  divided 
into  townships,  each  six  miles  square,  and  these  are  subdivided  into 
thirty-six  sections,  each  one  mile  square,  containing  six  hundred  and 
forty  acres.  All  the  dividing  lines  run  to  the  cardinal  points,  and 
of  course  intersect  each  other  at   right  angles,   except  where  frac- 


424  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

tional  sections  are  formed  by  navigable  rivers,  or  by  an  Indian 
boundary  line.  The  subdividing  lines  of  quarter  sections  are  not 
actually  surveyed,  but  the  corners,  boundaries,  and  contents  of 
these,  are  designated  and  ascertained  by  fixed  rules  prescribed  by 
law  ;  and  regular  maps  of  all  the  surveys  are  lodged  in  the  proper 
departments  of  the  government.  In  this  manner,  with  some  few 
exceptions,  the  public  lands  in  Alabama,  Mississippi,  Louisiana, 
Ohio,  Indiana,  and  Illinois,  have  been  sold  ;  and  the  system  applies 
universally  to  all  our  remaining  territorial  possessions.  The  com- 
mon law  doctrines  have,  in  respect  to  these  titles,  taken  deep  root, 
and  flourished  ;  and  the  waters,  which  divide  the  states  on  the 
opposite  banks  of  the  Ohio,  do  not  form  a  more  permanent  boun- 
dary of  their  respective  territorial  possessions,  than  the  different 
origin  of  their  land-titles  does  in  the  character  of  their  local  juris- 
prudence. 

5.  Another  circumstance,  which  will  probably  continue  to  form 
a  leading  diversity  in  the  jurisprudence  of  the  states,  is  the  exist- 
ence of  slavery.  This  condition  of  society  must  necessarily  in- 
volve a  great  variety  of  peculiar  provisions,  as  to  domestic  policy  and 
foreign  intercourse,  and  as  to  crimes,  rights,  and  duties,  to  which  no 
parallel  can  be  furnished  in  states,  whose  constitutions  or  laws  pro- 
hibit its  introduction  and  existence.  The  property  in  slaves,  par- 
taking, as  it  does,  of  the  double  aspects  of  real  and  personal  estate, 
being  transmissible  by  descent,  and  being  sold  as  personalty ;  being 
perpetually  in  demand  and  marketable,  and  of  course  affording 
solid  revenue  and  wealth  ;  giving  value  to  lands  by  increasing  the 
culture  of  agricultural  products  ;  being  also  of  intrinsic  value  and 
general  necessity  in  climates,  where  little  or  nothing  is  accomplished 
by  other  labor  ;  —  it  follows,  that  slavery  and  its  appendages  must 
sink  deep  into  the  mass  of  jurisprudence  of  the  slave-holding  states, 
and  furnish  much  litigation  in  the  shape  of  contracts,  conveyances, 
torts,  or  crimes,  which  other  states  are  happily  exempt  from,  and 
need  not  study,  either  for  admonition  or  instruction. 

6.  Another  diversity,  which  deserves  attention,  is  the  equity 
jurisdiction,  which  exists  in  complete  operation  in  some  states,  in 
partial  operation  in  others,  and  in  others  again  is  obsolete,  or  totally 
prohibited.  In  New  England,  no  such  establishment  is  known 
as  a  separate,  independent  court  of  equity.  In  Connecticut  and 
Vermont,  general  equity  powers  are  exercised  by  the  judges  of 
their  superior  courts.  But  in  all  the  other  New  England  states, 
equity  powers  are  confined  to  a  few  cases,  which  are  specified  and 


ADDRESS    BEFORE    THE    SUFFOLK    BAR.  425 

limiicd    by    legislative    acts.      In    Pennsylvania,   a   mixed   system 
exists.     No  court  of  chancery,  or  court  exercising  chancery  powers 
according    to    the    forms   and    proceedings   of   that   jurisdiction,    is 
known.      But  in  cases,   where   the    parties    possess   rights,   which  a 
court  of  equity  would  recognise  and  enforce,  courts  of  law,  follow- 
ing equity  in   this   particular,  endeavour  to  give   efficacy  to  these 
rights  through    the   instrumentality    of  remedies   at    law.      Thus,   a 
title  to  land  merely  equitable,  or  resting  in   a    contract,  of  which  a 
court  of  equity  would  compel  a  specific  performance,  is  sufficient  to 
sustain  an  ejectment  at  law.     On  the  other  hand,  in  New  York, 
New  Jersey,  Maryland,    Virginia,   and    South   Carolina,   courts   of 
equity  have  a  distinct  existence   and   organization,  independent  of 
courts  of  common  law  ;  and,  as  far  as  1  have  been  enabled  to  learn, 
in  the  remaining  states  the   equity  jurisdiction  is  generally  adminis- 
tered by  the  courts  of  common  law.    Wherever  the  equity  jurisdic- 
tion is  exercised,  its  admitted  basis   is  the  general  doctrines  of  the 
English  chancery.     But  it  is  so  modified   by  local  statutes,  usages, 
and  decisions,  that  it  would  be  somewhat  hazardous  for  a  lawyer  at 
the   chancery    bar  of  Westminster   to   form   an   opinion  as  to  the 
authority  to  give,  or  to  deny  relief,   however  unequivocally  those 
guides  might  speak,  whom    he   was   accustomed   to  consult.     If  I 
were    obliged    to    speak    from    my    own    very   imperfect     knowl- 
edge and  experience,  I  should   be  compelled  to  declare,  that  the 
deviations  in  America  from  the  established  principles  of  equity  are 
far  more  considerable   than   from    those   of  the   common   law.     A 
more  broad  and  undefined  discretion  has  been  assumed,  and  a  less 
stringent  obedience  to  the  dictates   of  authority.     Much    is   left  to 
the  habits  of  thinking   of  the    particular  judge,  and   more  to   that 
undefined  notion  of  right  and  wrong,  of  hardship  and  inconvenience, 
which  popular  opinions  alternately  create,  and  justify.     There  are, 
indeed,  illustrious  exceptions  to  these  remarks,  which  it  would  be  in- 
vidious to  point  out,  though  it  would  be  of  great  importance  to  follow. 
The  slight  sketches,  which  I  have  thus  ventured  to  draw,  of  some 
of  the  prominent   features   of  state  jurisprudence,   do,  as  I   think, 
justify  the  suggestion   already   made,  that  American  jurisprudence 
can   never   acquire   a  homogeneous  character  ;  and   that   we   must 
look  to  the  future  rather  for  increasing  discrepancies,   than   coinci- 
dences, in  the  law,  and   the   administration   of  the  law.     This  is  a 
consideration  of  no  small  moment  to  us  all ;  lest,  by  being  split  up 
into  distinct  provincial  Bars,  the  profession  should  become  devoted 
to  mere  state  jurisprudence,  and   abandon  those  more  enlightened. 
54 


426  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

and  extensive  researches,  which  form  the  accomplished  scholar,  and 
elevate  the  refined  jurist  ;  which  ennoble  the  patriot,  and  shed  a 
never  dying  lustre  round  the  statesman.  The  establishment  of  the 
National  Government?,  and  of  courts  to  exercise  its  constitutional 
jurisdiction,  will,  it  is  to  be  hoped,  in  this  respect,  operate  with  a 
salutary  influence.  Dealing,  as  such  courts  must,  in  questions  of  a 
public  nature  ;  such  as  concern  the  law  of  nations,  and  the  general 
rights  and  duties  of  foreign  nations  ;  such  as  respect  the  domestic 
relations  of  the  states  with  each  other,  and  with  the  General  Gov- 
ernment; such  as  treat  of  the  great  doctrines  of  prize  and  maritime 
law  ;  such  as  involve  the  discussion  of  grave  constitutional  powers 
and  authorities;  —  it  is  natural  to  expect,  that  these  courts  will 
attract  the  ambition  of  some  of  the  ablest  lawyers  in  the  different 
states,  with  a  view  both  to  fame  and  fortune.  And  thus,  perhaps, 
if  I  do  not  indulge  in  an  idle  dream,  the  foundations  may  be  laid 
for  a  character  of  excellence  and  professional  ability,  more  various 
and  exalted  than  has  hitherto  belonged  to  any  Bar  under  the 
auspices  of  the  common  law;  —  a  character,  in  which  minute 
knowledge  of  local  law  will  be  combined  with  the  most  profound 
attainments  in  general  jurisprudence,  and  with  that  instructive 
eloquence,  which  never  soars  so  high,  or  touches  so  potently,  as 
when  it  grasps  principles,  which  fix  the  destiny  of  nations,  or  strike 
down  to  the  very  roots  of  civil  polity. 

In  comparing  the  extent  of  American  jurisprudence  with  that 
of  England,  we  shall  find,  that,  if  in  some  respects  it  is  more  narrow, 
in  others  it  is  more  comprehensive.  The  whole  ecclesiastical  law 
of  England,  unless  so  far  as  it  may  operate  on  past  cases,  is  obso- 
lete. The  genius  of  our  institutions  has  universally  prohibited  any 
religious  establishment,  state  or  national.  Nor  is  there  the  slightest 
reason  to  presume,  that  the  imposition  of  tithes  could  ever  be  suc- 
cessfully introduced  here,  except  by  the  strong  arm  of  martial  law, 
forcing  its  way  by  conquest.  It  was  always  resisted  during  our 
colonial  dependency  ;  and  would  now  be  thought  at  war  with  all, 
that  we  prize  in  religion  or  civil  freedom.  The  numerous  questions 
respecting  tithes  and  moduses,  quafe  impedits,  and  advowsons,  and 
presentations,  the  fruitful  progeny  of  that  establishment,  are  gone 
to  the  same  tomb,  where  the  feudal  tenures  repose,  in  their  robes 
of  state,  in  dim  and  ancient  majesty.  In  the  next  place,  the  right 
of  primogeniture  being  abolished,  and  all  estates  descending  in 
coparceny,  and  entails  being  practically  changed  into  fee  simple 
estates,  there  is  no  necessity  for  those  intricate  conveyances,  settle- 


ADDRESS    BEFORE    THE    SUFFOLK    BAR.  427 

merits,  and  devises,  with  which  the  anxiety  of  parents  and  friends 
to  provide  against  the  inconveniences  of  the  law  has  filled  all  the 
courts  of  England.  Of"  this  troubled  stream  of  controversy  we 
may  indeed  say,  "  It  flows,  and  flows,  and  flows,  and  ever  will  flow 
on."«  Jn  the  next  place,  we  are  rid,  not  only  of  the  feudal  services 
and  tenures,  but  of  all  the  customary  law,  of  our  parent  country, 
the  ancient  demesnes,  the  copyholds,  the  manorial  customs  and 
rights,  and  the  customs  of  gavelkind,  and  borough  English.  The 
cases,  in  which  prerogative  or  privilege  can  arise,  are  few,  and 
limited  by  law.  Long  terms,  and  leases,  and  annuities,  charged  on 
land,  are  rare  among  us  ;  and  the  complicated  questions  of  contract 
and  of  rent,  which  fill  the  books,  are  of  course  scarcely  heard  of 
in  our  courts.  We  have  no  game  laws  to  harass  our  peasantry,  or 
to  form  an  odious  distinction  for  our  gentlemen  ;  and  the  melancholy 
inventions  of  later  times  eonnected  with  them,  the  spring-guns,  and 
the  concealed  spears,  and  the  man-traps,  never  cross  our  paths,  or 
disturb  our  fancies.  The  penalties  of  a  praemunire  cannot  be  in- 
curred ;  for  we  neither  court  nor  fear  papal  bulls  or  excommunica- 
tions. Outlawry,  as  a  civil  process,  if  it  have  a  legal  entity,  is 
almost  unknown  in  practice.  An  appeal  of  death  or  robbery 
never  drew  its  breath  among  us  ;  nor  can  it  now  be  brought  forth 
to  battle  in  its  dark  array  of  armor,  to  astonish  and  confuse  us,  as 
it  recently  did  all  Westminster  Hall.  These  are  no  small  depart- 
ments of  the  common  law.  A  few  of  them,  indeed,  are  almost 
obsolete  in  England  ;  but  the  residue  form  a  body  of  principles  so 
artificial,  and  so  difficult,  that  they  leave  behind  them  kw,  which 
can  in  these  respects  justly  claim  precedency. 

With  all  these  abridgments,  however,  our  law  is  still  sufficiently 
extensive  to  occupy  all  the  time,  and  employ  all  the  talents,  and 
exhaust  all  the  learning,  of  our  ablest  lawyers  and  judges.  The 
studies  of  twenty  years  leave  much  behind,  that  is  yet  to  be  grap- 
pled with  and  mastered.  And  if  the  law  of  a  single  state  is 
enough  for  a  long  life  of  labor  and  ambition,  the  task  falls  still 
heavier  on  those,  who  frequent  the  national  courts,  and  are  obliged 
to  learn  other  branches  of  law,  which  are  almost  exclusively  cog- 
nizable there.  When  it  is  considered,  that  the  equity  jurisprudence 
of  the  courts  of  the  United  States  is  like  that  of  England,  with  the 
occasional  adoption  of  the  peculiar  equities  of  local  law  ;  and  that  their 
admiralty  jurisdiction  takes  within  its  circuit,  not  merely  the  prize 
and  maritime  law,  but  seizures  also  for  the  breach  of  municipal  reg- 
ulations ;  when  to  these  are  added  the  interpretation  of  the  treaties 


428  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

and  statutes  of  the  United  States,  and  the  still  more  grave  discus- 
sion of  constitutional  questions  and  the  relative  rights  oi"  states  and 
their  citizens,  in  respect  to  other  states  ;  —  it  cannot  well  be  doubted, 
that  the  administration  of  justice  is  there  filled  with  perplexities, 
that  strain  the  human  mind  to  its  utmost  bearings. 

The  most  delicate,  and,  at  the  same  time,  the  proudest  attribute 
of  American  jurisprudence  is  the  right  of  its  judicial  tribunals  to 
decide  questions  of  constitutional  law.  In  other  governments,  these 
questions  cannot  be  entertained  or  decided  by  courts  of  justice  ; 
and,  therefore,  whatever  may  be  the  theory  of  the  constitution,  the 
legislative  authority  is  practically  omnipotent,  and  there  is  no  means 
of  contesting  the  legality  or  justice  of  a  law,  but  by  an  appeal  to 
arms.  This  can  be  clone  only,  when  oppression  weighs  heavily  and 
grievously  on  the  whole  people,  and  is  then  resisted  by  all,  because 
it  is  felt  by  all.  But  the  oppression,  that  strikes  at  a  humble 
individual,  though  it  robs  him  of  character,  or  fortune,  or  life,  is 
remediless;  and,  if  it  becomes  the  subject  of  judicial  inquiry,  judges 
may  lament,  but  cannot  resist,  the  mandates  of  the  legislature. 

Far  different  is  the  case  in  our  country  ;  and  the  privilege  of 
bringing  every  law  to  the  test  of  the  constitution  belongs  to  the 
humblest  citizen,  who  owes  no  obedience  to  any  legislative  act, 
which  transcends  the  constitutional  limits.  Some  visionary  states- 
men, indeed,  who  affect  to  believe,  that  the  legislature  can  do  no 
wrong,  and  some  zealous  leaders,  who  affect  to  believe,  that  popu- 
lar opinion  is  the  voice  of  unerring  wisdom,  have,  at  times,  ques- 
tioned this  authority  of  courts  of  justice.  If  they  were  correct  in 
their  doctrine,  we  might  as  well  be  without  a  written  constitution 
of  government,  since  the  minority  would  always  be  in  complete 
subjection  to  the  majority  ;  and  it  is  to  be  feared,  that  the  expe- 
rience of  mankind  has  never  shown,  that  the  despotism  of  numbers 
has  been  more  mild  or  equitable  than  that  swayed  by  a  single  hand. 
This  heresy,  as  questionable  in  point  of  sound  policy,  as  it  is  un- 
constitutional in  its  language,  has  hitherto  made  but  little  progress 
among  us.  The  wise,  and  the  learned,  and  the  virtuous,  have  been 
nearly  unanimous  in  supporting  that  doctrine,  which  courts  of  justice 
have  uniformly  asserted,  that  the  constitution  is  not  the  law  for  the 
legislature  only,  but  is  the  law,  and  the  supreme  law,  which  is  to 
direct  and  control  all  judicial  proceedings. 

The  discussion  of  constitutional  questions  throws  a  lustre  round 
the  Bar,  and  gives  a  dignity  to  its  functions,  which  can  rarely 
belong  to  the  profession  in  any  other  country.      Lawyers  are  here, 


ADDRESS    BEFORE    THE    SUFFOLK    BAR.  429 

emphatically,  plac<  d  as  sentinels  upon  the  outposts  of  the  constitu- 
tion ;  and  no  nobler  end  can  be  proposed  for  their  ambition  or 
patriotism,  than  to  stand  as  faithful  guardians  of  the  constitution, 
ready  to  defend  its  legitimate  powers,  and  to  stay  the  arm  of  legis- 
lative, executive,  or  popular  oppression.  If  their  eloquence  can 
charm,  when  it  vindicates  the  innocent,  and  the  suffering  under 
private  wrongs;  if  their  learning  and  genius  can,  with  almost  super- 
human witchery,  unfold  the  mazes  and  intricacies,  by  which  the 
minute  links  of  title  are  chained  to  the  adamantine  pillars  of  the 
law  ;  —  how  much  more  glory  belongs  to  them,  when  this  eloquence, 
this  learning,  and  this  genius,  are  employed  in  defence  of  their 
country  ;  when  they  breathe  forth  the  purest  spirit  of  morality  and 
virtue  in  support  of  the  rights  of  mankind  ;  when  they  expound 
the  lofty  doctrines,  which  sustain,  and  connect,  and  guide,  the  des- 
tinies of  nations  ;  when  they  combat  popular  delusions  at  the 
expense  of  fame,  and  friendship,  and  political  honors  ;  when  they 
triumph  by  arresting  the  progress  of  error  and  the  march  of  power, 
and  drive  back  the  torrent,  that  threatens  destruction  equally  to 
public  liberty  and  to  private  property,  to  all  that  delights  us  in 
private  life,  and  all  that  i^ives  grace  and  authority  in  public  office. 

This  is  a  subject,  which  cannot  too  deeply  engage  the  most  solemn 
reflections  of  the  profession.  Our  danger  lies  in  the  facility,  with 
which,  under  the  popular  cast  of  our  institutions,  honest  but  visionary 
legislators,  and  artful  leaders  may  approach  to  sap  the  foundations  of 
our  government.  Other  nations  have  their  security  against  sudden 
changes,  good  or  bad,  in  the  habits  of  the  people,  or  the  nature  of 
their  institutions.  They  have  a  monarchy  gifted  with  high  preroga- 
tives; or  a  nobility  graced  with  wealth,  and  knowledge,  and  heredi- 
tary honors  ;  or  a  stubborn  national  spirit,  proud  of  ancient  institu- 
tions, and  obstinate  against  all  reforms.  These  are  obstacles,  which 
resist  the  progress  even  of  salutary  changes  ;  and  ages  sometimes 
elapse  before  such  reforms  are  introduced,  and  yet  more  ages  before 
they  are  sanctioned  by  public  reverence.  The  youthful  vigor  of 
our  constitutions  of  government,  and  the  strong  encouragements, 
held  out  by  free  discussion  to  new  inquiries  and  experiments,  expose 
us  to  the  opposite  inconvenience  of  too  little  regard  for  what  is  estab- 
lished, and  too  warm  a  zeal  for  untried  theories.  This  is  our  weak 
point  of  defence  ;  and  it  will  always  be  assailed  by  those,  who  pant 
for  public  favor,  and  hope  for  advancement  in  political  struggles. 

Under  the  pressure  of  temporary  evils,  or  the  misguided  impulses 
of  party,  or  plausible  alarms  for  public  liberty,  it  is  not  difficult  to  per- 


430  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

suade  ourselves,  that  what  is  established  is  wrong  ;  that  what  hounds 
the  popular  wishes  is  oppressive  :  and  that  what  is  untried  will  give 
permanent  relief  and  safety.  Frame  constitutions  of  government 
with  what  wisdom  and  foresight  we  may,  they  must  he  imperfect, 
and  leave  something  to  discretion,  and  much  to  public  virtue,  It 
is  in  vain,  that  we  insert  hills  of  rights  in  our  constitutions,  as  checks 
upon  legislative  power,  unless  there  he  firmness  in  courts,  in  the 
hour  of  trial,  to  resist  the  fashionahle  opinions  of  the  day.  The 
judiciary  in  itself  has  little  power,  except  that  of  protection  for 
others.  It  operates  mainly  by  an  appeal  to  the  understandings  of 
the  wise  and  good  ;  and  its  chief  support  is  the  integrity  and  in- 
dependence of  an  enlightened  bar.  It  possesses  no  control  over 
the  purse  or  arms  of  the  Government.  It  can  neither  enact  laws, 
nor  raise  armies,  nor  levy  taxes.  It  stands  alone  in  its  functions, 
without  the  countenance  either  of  the  executive  or  the  legislature 
to  cheer  or  support  it.  Nay,  its  duty  sometimes  arrays  it  in  hos- 
tility to  the  acts  of  both.  But  while,  though  few,  our  judges  shall 
be  fearless  and  firm  in  the  discharge  of  their  functions,  popular 
leaders  cannot  possess  a  wide  range  of  oppression,  but  must  stand 
rebuked  in  their  ambitious  career  for  power.  And  it  requires  no 
uncommon  spirit  of  prophecy  to  foresee,  that,  whenever  the  liber- 
ties of  this  country  are  to  be  destroyed,  the  first  step  in  the  con- 
spiracy will  be  to  bring  courts  of  justice  into  odium;  and,  by  over- 
awing the  timid,  and  removing  the  incorruptible,  to  break  down  the 
last  barrier  between  the  people  and  universal  anarchy  or  despotism. 
These  are  dangers  common  to  all  the  states  of  the  Union  ; 
but  there  are  others,  again,  not  less  formidable  to  the  National  Gov- 
ernment. State  jealousies  and  state  excitements,  arising  from  acci- 
dental causes,  or  stimulated  by  local  feelings  or  political  disappoint- 
ments, will  continually  create  a  pressure  on  the  constitution  of  the 
United  States,  or  shake  those  provisions,  which  are  destined  to  hold 
the  state  sovereignties  in  check.  We  have  lived  to  see  the  point- 
ed prohibitions,  that  no  state  shall  coin  money,  emit  bills  of  credit, 
make  any  thing  but  gold  and  silver  a  tender  in  payment  of  debt, 
pass  ex  post  facto  laws,  or  laws  impairing  the  obligation  of  contracts, 
receive,  under  the  guidance  of  a  spirit  of  over  refined  speculation, 
or  the  pressure  of  public  calamities,  a  construction,  which,  if  cor- 
rect, will  annihilate  their  supposed  importance;  which  will  make 
them  an  unreal  mockery  ;  a  false  and  hollow  sound  ;  a  dead  and 
polluting  letter;  a  letter  which  killeth,  when  the  spirit  would  make 
alive.     We  have  lived  to  see  this  constitution,  the  great  bond  and 


ADDRESS    BEFORE    THE    SUFFOLK    BAR.  431 

bulwark  of  the  Union,  subjected  to  a  minute  and  verbal  criticism, 
which  the  common  law  repudiated  even  in  its  most  rigorous  con- 
struction of  the  grants  of  kings  ;  a  criticism,  which  scarcely  belonged 
to   the   stinted   charter  of    a   petty  municipality.     Attempts  have 
been  made,  honestly  if  you  please,  but  in  the  spirit  of  over  curious 
jealousy,  to  cripple  its  general  powers,  by  denying  the  means,  when 
the  end  is  required  ;  to  interpret  a  form  of  government,  necessarily 
dealing  in  general  expressions,  if  it    mean    to   deal   with   any  thing 
except  legal  entities  and  metaphysical    notions,  like    the  grant  of  a 
free   fishery,  or  an  easement,  or  franchise  against  common   right; 
instead  of  interpreting  it,  as  a  constitution  to  regulate  great  national 
concerns,  and  to   protect  and   sustain  the  citizens  against  domestic 
misrule,  as  well  as  foreign  aggression.     Even  its  enumerated  powers 
have  been  strained  into  a  forced  and   unnatural   posture,  and  tied 
down  upon  the  uneasy  bed  of  Procrustes.     And  what,  let  me  ask, 
with  becoming  solemnity,  what  would  be  the  consequence,  if  these 
attempts,  repudiating  the  old  and  settled  doctrines  of  the  constitu- 
tion, should  succeed  ?     What  but  to  subject  it  to  the  independent 
and  uncontrollable  interpretation  of  twenty-four  sovereign  states ; 
to  give  it  in  no  two  stales  the   same  power  and  efficiency  ;  to  wea- 
ken its  salutary  influences,  and   subdue  its  spirit ;  to  increase  the 
discords  and  rivalries  of  contending  states;  to  surrender  its  supreme 
judicial  functions  into  the   hands  of  those,  who  feel  no  permanent 
interest  to  exercise  or  support  them  ;  in  short  to  drive  us  back  to 
the  old  times,  and  the  old   practices  under  the  confederation,  when 
the  national  powers   died  away  in  recommendations,   and  solemn 
compacts  and  pledges  were  forgotten    and  contemned,  if  it  did  not 
suit  the  convenience  of  states  to  remember  or  to  redeem  them  ? 
If  the   union  of  the  states  is  to  be  preserved,   (and  most  earnestly 
must  we  all  hope,  that  it  may  be  perpetual,)  it  can  only  be  by  sus- 
taining the  powers  of  the  National  Government  in  their  full  vigor, 
and  holding  the  judicial  jurisdiction,  as  the  constitution  holds  it,  co- 
extensive  with  the  legislative  authority.     If,  by  an    adherence  to 
some  false  and  glossy  theories  of  the  day,  we  yield  up  its  powers, 
as  victims  on  the  altar  of  public  favor,  or  public  necessity,  the  con- 
stitution will  sink  into  a   premature  and  hopeless  decline.     It  will 
add  another,  and  probably  the  last,  to  the  long  list  of  experiments  to 
establish  a  free   government,   which   have   alternately    illuminated 
and  darkened  the  annals  of  other  nations,  as  renowned  in  arts  and 
arms,  as  they  were  for  their  advancement  in  literature  and  jurispru- 
dence. 


432  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

Something  more  I  would  say  on  this  subject;  but  time  fails  me, 
and  I  feel,  that  1  am  entering  on  topics  far  too  grave,  and  solemn, 
and  delicate,  for  occasions  like  the  present.  May  I  be  permitted, 
however,  to  say,  that  the  duty  devolved  upon  the  profession  in 
these  times  is  of  deep  responsibility  and  interest.  It  depends  upon 
the  present  age,  whether  the  national  constitution  shall  descend  to 
our  children  in  its  masculine  majesty,  to  protect  and  unite  the 
country  ;  or  whether,  shorn  of  its  strength,  it  shall  become  an  idle 
mockery,  and  perish  before  the  grave  has  closed  upon  the  last  of 
its  illustrious  founders. 

In  looking  to  the  future  prospects  of  the  jurisprudence  of  our 
country,  it  appears  to  me,  that  the  principal  improvements  must 
arise  from  a  more  thorough  and  deep-laid  juridical  education,  a 
more  exact  preparatory  discipline,  and  a  more  methodical  and  ex- 
tensive range  of  studies. 

In  the  first  place,  it  cannot  be  disguised,  that  we  are  far  behind 
the  English  Bar  in  our  knowledge  of  the  practice,  and  of  the  ele- 
mentary forms  and  doctrines  of  special  pleading.  I  do  not  speak 
here  of  the  technical  refinements  of  the  old  law  in  special  plead- 
ing, which  the  good  sense  of  modern  times  has  suppressed  ;  but  of 
those  general  principles,  which  constitute  the  foundation  of  actions,, 
and  of  those  forms,  by  which  alone  rights  and  remedies  are  suc- 
cessfully pursued.  There  is  a  looseness  and  inartificial  structure  in 
our  declarations  and  other  pleadings,  which  betray  an  imperfect 
knowledge  both  of  principles  and  forms,  an  aberration  from  settled 
and  technical  phraseology,  and  a  neglect  of  appropriate  averments,, 
which  not  only  deprive  our  pleadings  of  just  pretension  to  elegance 
and  symmetry,  but  subject  them  to  the  coarser  imputation  of  slov- 
enliness. The  forms  of  pleading  are  not,  as  some  may  rashly  sup- 
pose, mere  trivial  forms  ;  they  not  unfrequently  involve  the  essence 
of  the  defence  ;  and  the  discipline,  which  is  acquired  by  a  minute 
attention  to  their  structure,  is  so  far  from  being  lost  labor,  that  itr 
probably  more  than  all  other  employments,  leads  the  student  to  that 
close  and  systematical  logic,  by  which  success  in  the  profession  is 
almost  always  secured.  Of  the  great  lawyers  and  judges  of  the 
English  forum  one  can  scarcely  be  named,  who  was  not  distin- 
guished by  uncommon  depth  of  learning  in  this  branch  of  the  law  ; 
and  many  have  risen  to  celebrity  solely  by  their  attainments  in  it. 
We  should  blush  to  be  accused  of  perpetual  mistakes  in  grammati- 
cal construction,  or  of  a  gross  and  unclassical  style  of  composition. 
Yet  these  are  venial  errors,  compared  with  those,  with  which  the 


ADDRESS    BEFORE    THE    SUFFOLK    BAR.  433 

law  is  sometimes  reproached.  Diffuse  and  tedious  as  are  the  modern 
English  pleadings,  it  cannot  be  denied,  that  they  exhibit  a  thorough 
mastery  of  the  science.  We  miss,  indeed,  the  close,  lucid,  and 
concentrated  vigor  of  the  pleadings  in  the  days  of  Rastall,  and  Coke, 
and  Plowden,  and  even  of  Saunders  and  Raymond.  But  our  taste 
is  not  offended  by  loose  and  careless  phraseology,  nor  our  under- 
standing distressed  by  omissions,  which  betray  the  genuine  "crassa 
negligentia  "  of  the  law,  or  by  surplusage  so  vicious  and  irrelevant, 
that  one  is  at  a  loss  to  know  at  what  point  the  pleadings  aim,  or 
whether  they  aim  at  any.  We  ought  not  to  rest  satisfied  with  me- 
diocrity, when  excellence  is  within  our  reach.  The  time  is  arrived, 
when  gentlemen  should  be  scrupulously  precise  in  their  drafts  of 
pleadings,  and  when  the  records  of  our  courts  should  not  be  de- 
formed by  proceedings,  which  could  not  stand  the  most  rigorous 
scrutiny  of  the  common  law,  in  form  as  well  as  in  substance.  Ex- 
emplifications of  our  judgments  may  pass,  nay,  do  already  pass,  to 
England  ;  and  it  ought  to  be  our  pride  to  know,  that  they  will  not 
be  disgraced  under  the  inspection  of  the  sober  benchers  of  any  Inn 
of  Court.  We  should  study  ancient  forms  and  cases,  as  we  study 
the  old  English  writers  in  general  literature  ;  because  we  may  ex- 
tract from  them,  not  only  solid  sense,  but  the  best  examples  of  pure 
and  undefiled  language.  There  is  a  better  reason  still,  and  that  is, 
that  special  pleading  contains  the  quintessence  of  the  law,  and  no 
man  ever  mastered  it,  who  was  not  by  that  very  means  made  a 
profound  lawyer. 

Another  source  of  improvement  is  in  the  more  general  study  of 
the  doctrines  of  courts  of  equity.  I  do  not  here  address  myself 
to  those,  who  expect  to  practise  in  such  courts,  for  to  them  it  is 
almost  unnecessary  to  say,  that  the  study  is  indispensable.  But  I 
address  the  remark  to  those,  who  are  conversant  only  with  courts 
of  common  law.  The  principles  of  equity  jurisprudence  are  of 
a  very  enlarged  and  elevated  nature.  They  are  essentially  rational, 
and  moulded  into  a  degree  of  moral  perfection,  which  the  law  has 
rarely  aspired  to.  The  arguments  in  courts  of  this  sort  abound 
with  new  views  and  elementary  discussions.  They  present  strong 
and  brilliant  contrasts  to  some  of  the  perplexed  notions  of  the  old 
common  law  ;  and  not  unfrequently  confirm  and  illustrate  doctrines 
strictly  legal,  by  unfolding  new  analogies,  and  expounding  the  na- 
ture and  limits  of  principles,  in  a  manner  full  of  instruction  and 
interest.  It  is  a  great  mistake  to  confine  our  juridical  researches 
to  the  narrow  path,  in  which  we  mean  to  tread.  There  is  no  great 
55 


434  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

mind,  but  feels  itself  cramped  and  fettered  by  such  a  course  ;  and  no 
moderate  mind,  but  becomes  thereby  ground  up  into  the  most  dusty 
professional  pedantry.  The  great  branches  of  jurisprudence  mutu- 
ally illustrate  and  support  each  other.  The  principles  of  one  may 
often  be  employed  with  the  most  captivating  felicity  in  aid  of 
another  ;  and  in  proportion  as  the  common  law  becomes  familiar 
with  the  lights  of  equity,  its  own  code  will  become  more  useful  and 
more  enlightened.  In  our  country,  the  study  of  equity  jurispru- 
dence has  not,  until  within  a  few  years,  attracted  general  attention  ; 
and  in  New  England,  from  causes,  which  have  been  already  alluded 
to,  it  has  fallen  into  more  neglect  than  our  advances  in  other  branch- 
es of  the  law  would  justify  or  excuse. 

Connected  with  this,  and,  as  a  mine  abounding  with  the  most 
precious  materials,  to  adorn  the  edifice  of  our  jurisprudence,  is  the 
study  of  the  foreign  maritime  law,  and,  above  all,  of  the  civil  law. 
Where  shall  we  find  more  full  and  masterly  discussions  of  maritime 
doctrines,  coming  home  to  our  own  bosoms  and  business,  than  in 
the  celebrated  Commentaries  of  Valin  ?  Where  shall  we  find  so 
complete  and  practical  a  treatise  on  insurance  as  in  the  mature  la- 
bors of  Emerigon  ?  Where  shall  we  find  the  law  of  contracts  so 
extensively,  so  philosophically,  and  so  persuasively  expounded,  as 
in  the  pure,  moral,  and  classical  treatises  of  Pothier?  Where  shall 
we  find  the  general  doctrines  of  commercial  law  so  briefly,  yet 
beautifully,  laid  down,  as  in  the  modern  commercial  code  of  France  ? 
Where  shall  we  find  such  ample  general  principles  to  guide  us  in 
new  and  difficult  cases,  as  in  that  venerable  deposite  of  the  learn- 
ing and  labors  of  the  jurists  of  the  ancient  world,  the  Institutes  and 
Pandects  of  Justinian?  The  whole  continental  jurisprudence  rests 
upon  this  broad  foundation  of  Roman  wisdom  ;  and  the  English 
common  law,  churlish  and  harsh  as  was  its  feudal  education,  has 
condescended  silently  to  borrow  many  of  its  best  principles  from 
this  enlightened  code.*  The  law  of  contracts  and  personalty,  of 
trusts,  and  legacies,  and  charities,  in  England,  has  been  formed  into 
life  by  the  soft  solicitudes  and  devotion  of  her  own  neglected  pro- 
fessors of  the  civil  law. 

There  is  no  country  on  earth,  which  has  more  to  gain  than  ours 
by  the  thorough  study  of  foreign  jurisprudence.  We  can  have  no 
difficulty  in  adopting,  in  new  cases,  such  principles  of  the  maritime 
and  civil  law,  as  are  adapted  to  our  own  wants,  and  commend  them- 

"  See  12  Mod.  482,  by  Lord  Holt. 


ADDRESS    BEFORE    THE    SUFFOLK    BAR.  435 

selves  by  their  intrinsic  convenience  and  equity.  Let  us  not  vainly 
imagine,  that  we  have  unlocked  and  exhausted  all  the  stores  of 
juridical  wisdom  and  policy.  Our  jurisprudence  is  young  and  flex- 
ible ;  but  it  has  withal  a  masculine  character,  which  may  be  refined 
and  exalted  by  the  study  of  the  best  models  of  antiquity.  And 
the  structure  of  our  state  and  national  governments,  while  it  easily 
admits  of  the  incorporation  of  foreign  maritime  principles,  at  the 
same  time  makes  it  safe,  useful,  and  commendable. 

There  is  yet  another  study,  which  may  well  engage  the  attention 
of  American  lawyers,  and  be,  in  the  language  of  Lord  Coke,  both 
honorable  and  profitable  to  them.  I  mean  the  study  of  the  law 
of  nations.  This  is  at  all  times  the  duty,  and  ought  to  be  the 
pride  of  all,  who  aspire  to  be  statesmen ;  and,  as  many  of  our  law- 
yers become  legislators,  it  seems  to  be  the  study,  to  which,  of  all 
others,  they  should  most  seriously  devote  themselves.  Indepen- 
dently of  these  considerations,  there  is  nothing,  that  can  give  so  high 
a  finish,  or  so  brilliant  an  ornament,  or  so  extensive  an  instruction, 
as  this  pursuit,  to  a  professional  education.  What,  indeed,  can  tend 
more  to  exalt  and  purify  the  mind,  than  speculations  upon  the  ori- 
gin and  extent  of  moral  obligations  ;  upon  the  great  truths  and 
dictates  of  natural  law  ;  upon  the  immutable  principles,  that  regu- 
late right  and  wrong  in  social  and  private  life;  and  upon  the  just 
applications  of  these  to  the  intercourse,  and  duties,  and  contentions 
of  independent  nations  ?  What  can  be  of  more  transcendent  dig- 
nity, or  better  fitted  to  employ  the  highest  faculties  of  genius,  than 
the  development  of  those  important  truths,  which  teach  the  duties 
of  magistrates  and  people  ;  the  rights  of  peace  and  war ;  the  limits 
of  lawful  hostility  ;  the  mutual  duties  of  belligerent  and  neutral 
powers  ;  and  which  aim  at  the  introduction  into  national  affairs  of  that 
benign  spirit  of  Christian  virtue,  which  tempers  the  exercise  even 
of  acknowledged  rights  with  mercy,  humanity,  and  delicacy  ?  If 
the  science  of  jurisprudence  bej  as  it  has  been  eloquently  described 
to  be,  "  the  pride  of  the  human  intellect,"  and  "  the  collected 
reason  of  ages,  combining  the  principles  of  original  justice  with 
the  infinite  variety  of  human  concerns,"  where  can  we  find  more 
striking  proofs  of  its  true  excellence,  than  in  the  study  of  those 
maxims,  which  address  themselves  to  the  best  interests  and  the 
most  profound  reflections  of  nations,  and  call  upon  them,  as  the  in- 
struments of  Providence,  to  administer  to  each  other's  wants,  to 
check  inordinate  ambition,  to  support  the  weak,  and  to  fence  in 
human  infirmity,  so  that  it  can  scarcely  transcend  the  bounds  of 


436  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

established  rules,  without  drawing  after  it  universal  indignation  and 
resistance  ?  Yet,  how  few  have  mastered  the  elementary  treatises 
on  this  subject,  the  labors  of  Albericus  Gentilis,  and  Zouch,  and 
Grotius,  and  Puffendorf,  and  Bynkershoek,  and  Wolfius,  and  Vat- 
tel  ?  How  few  have  read  with  becoming  reverence  and  zeal  the 
decisions  of  that  splendid  jurist,  the  ornament,  I  will  not  say  of  his 
own  age  or  country,  but  of  all  ages  and  all  countries  ;  the  intrepid 
supporter  equally  of  neutral  and  belligerent  rights  ;  the  pure  and 
spotless  magistrate  of  nations,  who  has  administered  the  dictates  of 
universal  jurisprudence  with  so  much  dignity  and  discretion  in  the 
Prize  and  Instance  Courts  of  England  ?  Need  I  pronounce  the 
name  of  Sir  William  Scott?  How  few  have  aspired,  even  in  vision, 
after  those  comprehensive  researches  into  the  law  of  nations,  which 
the  Introductory  Discourse  of  Sir  James  Mackintosh  has  opened  and 
explained  with  such  attractive  elegance  and  truth  ? 

Such  are  some  of  the  studies,  from  which  American  jurispru- 
dence may,  in  my  humble  judgment,  derive  essential  improve- 
ments ;  and  I  cannot  but  indulge  the  belief,  that  they  will  be 
eagerly  sought  and  thoroughly  examined  by  the  good  and  the  wise 
of  succeeding  ages. 

The  mass  of  the  law  is,  to  be  sure,  accumulating  with  an 
almost  incredible  rapidity,  and  with  this  accumulation,  the  labor 
of  students,  as  well  as  of  professors,  is  seriously  augmenting.  It  is 
impossible  not  to  look  without  some  discouragement  upon  the 
ponderous  volumes,  which  the  next  half  century  will  add  to  the 
groaning  shelves  of  our  jurists.  The  habits  of  generalization, 
which  will  be  acquired  and  perfected  by  the  liberal  studies,  which 
I  have  ventured  to  recommend,  will  do  something  to  avert  the 
fearful  calamity,  which  threatens  us,  of  being  buried  alive,  not  in 
the  catacombs,  but  in  the  labyrinths  of  the  law.  I  know,  indeed, 
of  but  one  adequate  remedy,  and  that  is  by  a  gradual  digest,  under 
legislative  authority,  of  those  portions  of  our  jurisprudence,  which, 
under  the  forming  hand  of  the  judiciary,  shall  from  time  to  time 
acquire  scientific  accuracy.  By  thus  reducing  to  a  text  the  exact 
principles  of  the  law,  we  shall,  in  a  great  measure,  get  rid  of  the 
necessity  of  appealing  to  volumes,  which  contain  jarring  and  dis- 
cordant opinions  ;  and  thus  we  may  pave  the  way  to  a  general 
code,  which  will  present,  in  its  positive  and  authoritative  text,  the 
most  material  rules  to  guide  the  lawyer,  the  statesman,  and  the 
private  citizen.  It  is  obvious,  that  such  a  digest  can  apply  only  to 
the  law,  as  it  has  been   applied   to   human   concerns  in  past  times. 


ADDRESS    BEFORE    THE    SUFFOLK    BAR.  437 

But  by  revisions  at  distant  periods  it  may  be  made  to  reflect  all  the 
light,  which  intermediate  decisions  may  have  thrown  upon  our  juris- 
prudence. To  attempt  more  than  this  would  be  a  hopeless  labor, 
if  not  an  absurd  project.  We  ought  not  to  permit  ourselves  to 
indulge  in  the  theoretical  extravagances  of  some  well  meaning 
philosophical  jurists,  who  believe,  that  all  human  concerns  for  the 
future  can  be  provided  for  in  a  code,  speaking  a  definite  language. 
Sufficient  for  us  will  hi'  the  achievement,  lo  reduce  the  past  to  order 
and  certainty  ;  and  that  this  is  within  our  reach  cannot  be  matter  of 
doubtful  speculation.  It  has  been  already  accomplished  in  a  man- 
ner so  triumphant,  that  no  cavil  has  been  able  to  lessen  the  fame 
of  the  authors.  The  Pandects  of  Justinian,  imperfect  as  they  are, 
from  the  haste,  in  which  they  were  compiled,  are  a  monument  of 
imperishable  "lory  to  the  wisdom  of  the  age  ;  and  they  gave  to 
Rome,  and  to  the  civilized  world,  a  system  of  civil  maxims,  which 
has  not  been  excelled  in  usefulness  and  equity.  They  superseded 
at  once  the  immense  collections  of  former  times,  and  left  them  to 
perish  in  oblivion  ;  so  that,  of  all  the  ante-Justinianean  jurisprudence, 
little  more  remains  than  a  few  fragments,  which  are  now  and  then 
recovered  from  the  dust  and  rubbish  of  antiquity,  in  the  Codices 
Rescript!  of  some  venerable  libraries.  The  modern  code  of  France, 
—  embracing,  as  it  does,  the  entire  elements  of  her  jurisprudence  in 
the  rights,  duties,  relations,  and  obligations  of  civil  life  ;  the  expo- 
sition of  the  rules  of  contracts  of  every  sort,  including  commercial 
contracts  ;  the  descent,  distribution,  and  regulation  of  property  ; 
the  definition  and  punishment  of  crimes  ;  the  ordinary  and  extra- 
ordinary police  of  the  country  ;  and  the  enumeration  of  the  whole 
detail  of  civil  and  criminal  practice  and  process, — is  perhaps  the 
most  finished  and  methodical  treatise  of  law,  that  the  world  ever 
saw.  This  code  forms  also  the  law  of  Holland,  and,  with  com- 
paratively few  alterations,  has  been  solemnly  adopted  as  its  funda- 
mental law  by  the  state  of  Louisiana.  The  materials  of  it  were 
to  be  sought  for  among  an  almost  infinite  variety  of  provincial 
usages  and  customary  laws  ;  and  were  far  more  difficult  to  reduce 
into  system  than  any,  which  belong  to  the  common  law.  It  is  left 
to  the  future  jurists  of  our  country  and  England  to  accomplish  for 
the  common  law,  what  has  thus  been  so  successfully  demonstrated 
to  be  a  practical  problem  in  the  jurisprudence  of  other  nations  ;  a 
task,  which  the  modest  but  wonderful  genius  of  Sir  William  Jones 
did  not  scruple  to  believe  to  be  within  the  reach  of  a  single  mind 
successfully  to  accomplish. 


438  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

Gentlemen, —  I  have  thus  endeavoured,  not  as  I  could  wish,  but 
as  1  have  been  able,  amidst  the  cares  of  private  life,  and  the  dis- 
tractions of  official  business,  to  lay  before  you  some  imperfect 
sketches  of  the  past  history  of  the  law,  of  its  future  prospects,  and 
of  the  sources,  whence  we  may  derive  improvement.  May  I  add, 
in  the  language  of  the  eminent  living  jurist  (Sir  James  Mackin- 
tosh)* whom  I  have  already  cited,  that  "  There  is  not,  in  my  opinion, 
in  the  whole  compass  of  human  affairs,  so  noble  a  spectacle,  as  that, 
which  is  displayed  in  the  progress  of  jurisprudence  ;  where  we 
may  contemplate  the  cautious  and  unwearied  exertions  of  a  suc- 
cession of  wise  men  through  a  long  course  of  ages,  withdrawing 
every  case,  as  it  arises,  from  the  dangerous  power  of  discretion,  and 
subjecting  it  to  inflexible  rules;  extending  the  dominion  of  justice 
and  reason  ;  and  gradually  contracting,  within  the  narrowest  possible 
limits,  the  domain  of  brutal  force  and  of  arbitrary  will." 

If,  in  the  discussion  of  these  topics,  I  have  suggested  a  single 
hint,  that  may  cheer  the  student  in  his  laborious  devotion  to  the 
elements  of  the  law  ;  or  have  awakened  in  the  mind  of  a  single 
advocate  another  motive  to  quicken  his  eloquence  or  zeal,  my 
humble  labor  will  not  be  without  its  consolations.  We  are  all 
bound  by  the  strong  ties  of  civil  obligation,  by  professional  charac- 
ter, by  patriotic  pride,  and  by  moral  feelings,  to  cultivate  and  ex- 
tend this  interesting  science.  No  Bar  in  America  is  more  justly 
entitled  to  public  confidence  than  that  of  my  native  state  ;  and 
none  may  more  justly  claim  respect  for  its  moral,  literary,  and 
juridical  elevation,  than  that,  which  I  have  now  the  honor  to  address. 
Much,  however,  remains  to  be  done,  to  satisfy  a  just  ambition  for 
excellence  ;  and  every  day's  experience  admonishes  us,  that  life 
is  short,  and  art  is  long,  furnishing  motives  at  once  to  excite  our 
diligence,  and  to  restrain  an  undue  ardor  in  any  human  pursuit. 

When,  indeed,  1  look  round,  and  contemplate  the  ravages,  which 
death  has  made  during  my  own  brief  career,  not  only  among  the 
sages  of  the  law,  but  among  those  in  the  fresh  bloom  of  youth, 
just  struggling  for  distinction,  —  the  consideration  fills  me  with  the 
most  profound  melancholy.  Since  we  were  convened  here  on  the 
last  anniversary,  the  modest  and  accomplished  Gallison  has  closed 
his  useful  life,  and  buried  with  him  many  a  brilliant  hope  of  his 
parents,  friends,  and  country.  I  will  not  dwell  upon  his  distin- 
guished  talents  and   virtues,   his   blameless  innocence   of  life,  his 

*  Iutrod.  Disc.  62. 


ADDRESS    BEFORE    THE    SUFFOLK    BAR.  439 

elevated  piety,  his  unwearied  diligence,  his  extensive  learning,  his 
ardent  devotion  to  literature,  his  active  benevolence,  exhausting 
itself  in  t^ood  deeds,  and  "  blushing  to  find  it  lame."  You  knew 
him  well,  and  your  sympathies  have  mingled  with  the  tears  and 
sorrows,  that  embalm  his  memory.  But  1  may  propose  him  as  an 
example,  polished,  if  not  perfect,  of  that  excellence,  which  the 
studies,  I  have  this  day  ventured  to  recommend,  are  calculated  to 
produce.  Tacitus  has  recorded  with  affectionate  solicitude  the  life 
and  character  of  Agricola.  May  I  be  permitted  to  borrow  from 
his  admirable  page  a  single  passage,  to  grace  the  memory  of  my 
lamented  friend  and  pupil  ?  "  Placide  quiescas,  nosque,  domum 
tuam,  ab  infirmo  desiderio  et  muliebribus  lamentis  ad  contempla- 
tionem  virtu  turn  tuarum  voces,  quas  neque  lugeri,  neque  plangi 
fas  est ;  admiratione  te  potius  quara  temporalibus  laudibus,  et  si 
natura  suppeditet,  aemulatione  decoremus.  Is  verus  honos,  ea  con- 
junctissimi  cujusque  pietas." 

We,  too,  must  soon  pass  away  to  the  tomb,  where  our  friends  and 
instructers,  the  Ameses,  the  Sullivans,  and  the  Dexters,  the  Low- 
ells, the  Danas,  the  Parsonses,  and  the  Sewalls,  are  gone  before  us. 
We  cannot  be  indifferent  to  the  fate  of  our  children,  or  our  coun- 
try ;  and  the  happiness,  as  well  as  the  honor  of  both,  is  indissolubly 
connected  with  the  faithful  administration  of  justice.  Nor  ought 
we  to  disguise,  that  that  science,  which  has  been  the  choice  of  our 
youth,  and  the  ambition  of  our  manhood,  has  much  in  its  milder 
studies  to  sooth  and  cheer  us  in  the  infirmities  of  old  age.  Nor 
can  it  be  deemed  a  human  frailty,  if,  when  we  take  our  last  farewell 
of  the  law,  we  "  cast  one  longing,  lingering  look  behind,"  and  bless 
those  rising  lights,  which  are  destined  to  adorn  our  juridical  tribu- 
nals, however  dimly  they  may  be  descried  by  our  fading  vision. 

May  our  successors  in  the  profession  look  back  upon  our  times, 
not  without  some  kind  regrets,  and  some  tender  recollections. 
May  they  cherish  our  memories  with  that  gentle  reverence,  which 
belongs  to  those,  who  have  labored  earnestly,  though  it  may  be 
humbly,  for  the  advancement  of  the  law.  May  they  catch  a  holy 
enthusiasm  from  the  review  of  our  attainments,  however  limited 
they  may  be,  which  shall  make  them  aspire  after  the  loftiest  pos- 
sessions of  human  learning.  And  thus  may  they  be  enabled  to 
advance  our  jurisprudence  to  that  degree  of  perfection,  which  shall 
make  it  a  blessing  and  protection  to  our  own  country,  and  excite 
the  just  admiration  of  mankind. 


DISCOURSE 


PRONOUNCED   UPON   THE    INAUGURATION    OF   THE    AUTHOR,  AS   DANE  PRO- 
FESSOR  OF   LAW  IN   HARVARD   UNIVERSITY,   AUGUST  25th,  1829. 


It  has  been  customary  in  this  University  for  professors,  upon 
their  induction  into  office,  to  deliver  a  public  discourse  upon  some 
topics  suitable  to  the  occasion.  Upon  the  establishment  of  a  new 
professorship  it  may  also  be  expected,  that  he,  who  for  the  first 
time  fills  the  chair,  should  give  some  account  of  the  foundation, 
and  of  the  studies,  which  it  proposes  to  encourage.  1  shall  endeav- 
our not  wholly  to  disappoint  the  just  expectations  of  my  audience 
in  both  respects  ;  premising,  however,  that  much  reliance  must  be 
placed  upon  their  indulgence,  since  the  subject  affords  little  scope 
for  elegant  disquisition,  and  almost  forbids  those  ornaments,  which 
gratify  the  taste,  and  warm  the  imagination  of  the  scholar. 

My  plan  is,  in  the  first  place,  to  lay  before  you  some  considera- 
tions touching  the  general  utility  of  the  study  of  the  law  ;  and  to 
address  them  with  more  pointed  application  to  those,  who  propose 
to  make  it  the  business  of  their  lives.  In  the  next  place,  1  shall 
briefly  unfold  the  nature  and  objects  of  the  professorship,  which  I 
have  now  the  honor  to  occupy,  and  the  particular  studies,  which  it 
comprehends  ;  so  that  the  noble  design  of  the  founder  may  be 
amply  vindicated,  and  receive,  as  it  deserves,  the  public  approba- 
tion. In  proportion,  however,  to  the  value  and  importance  of  these 
studies,  I  cannot  but  feel  a  diffidence,  lest  they  should  fail  under 
my  care  of  becoming  as  attractive  and  interesting  as  they  ought 
to  be  ;  and  lest  my  own  imperfect  execution  of  duty  should  cast  a 
shade  upon  the  bright  prospects,  which  the  founder  is  opening  to  our 
view. 

In  the  present  state  of  knowledge,  such  a  diffidence  might 
well  become  the  teacher  of  any  science  ;  but  the  remark  applies 
with  augmented  force  to  a  science  so  vast,  so  intricate,  and  so  com- 
prehensive, as  that  of  jurisprudence.     In  its  widest  extent  it  may 


INAUGURAL    DISCOURSE.  441 

be  said  almost  to  compass  every  human  action  ;  and  in  its  minute 
details,  to  measure  every  human  duty.  If  we  contemplate  it  in 
the  highest  order  of  subjects,  which  it  embraces,  it  can  scarcely  be 
surpassed  in  dignity.  It  searches  into  and  expounds  the  elements  of 
morals  and.  ethics,  and  the  eternal  law  of  nature,  illustrated  and  sup- 
ported by  the  eternal  law  of  revelation.  It  is  in  this  sense,  that  it  has 
constituted  the  panegyric  of  philosophers  and  sages  in  almost  every 
age.  It  is  in  this  sense,  that  Cicero  has  spoken  of  it,  in  a  passage, 
which  is  upon  the  lips  of  every  scholar :  "  Est  quidem  vera  lex 
recta  ratio,  naturae  congruens,  diffusa  in  omnes,  constans,  sempi- 
terna,  qua?  vocet  ad  oflicium  jubendo,  vetando  a  fraude  deterreat, 
qua?  tamen  neque  probos  frustra  jubet  aut  vetat,  nee  improbos 
jubendo  aut  vetando  movet.  Huic  legi  nee  obrogari  fas  est,  neque 
derogari  ex  hac  aliquid  licet,  neque  tota  abrogari  potest.  Nee 
vero,  aut  per  senatum  aut  per  populuin,  solvi  hac  lege  possumus."* 
It  is  in  this  sense,  also,  that  the  genius  of  Sir  William  Jones,  rising 
into  poetical  enthusiasm,  has  proclaimed,  that 

"  Sovereign  law,  the  state's  collected  will, 
O'er  thrones  and  globes  elate 
Sits  empress,  crowning  good,  repressing  ill." 

But  if  we  contemplate  it  in  a  narrower  view,  as  a  mere  system 
of  regulations  for  the  safety  and  harmony  of  civil  society  ;  as  the 
instrument  of  administering  public  and  private  justice  ;  as  the  code, 
by  which  rights  are  ascertained,  and  wrongs  redressed  ;  by  which 
contracts  are  interpreted,  and  property  is  secured,  and  the  institu- 
tions, which  add  strength  to  government,  and  solid  happiness  to 
domestic  life,  are  firmly  guarded  ; — if,  I  say,  we  contemplate  it  in 
this  narrower  view,  its  dignity  may  in  some  measure  be  lessened, 
but  its  design  will  yet  appear  sufficiently  grand,  and  its  execution 
sufficiently  difficult,  to  have  strong  claims  upon  the  gratitude  and 
admiration  of  mankind. 

The  common  law  purports  to  be  such  a  system  of  jurisprudence. 
By  the  common  law  is  sometimes  understood  that  collection  of 
principles,  which  constitutes  the  basis  of  the  administration  of 
justice  in  England,  in  contradistinction  to  the  maxims  of  the 
Roman  code,  which  has  universally  received  the  appellation  of 
the  civil  law.  The  latter  has  been  adopted,  or,  if  I  may  so  say, 
inosculated,  into  the  juridical  polity  of  all  continental  Europe,  as  a 
fundamental  rule.     The  former  is  emphatically  the  custom  of  the 

*  Cic.  de  Repnb.  Lib.  iii.  §  22.     See  also,  Cic.  de  Legg.  Lib.  i.  §  6. 

56 


442  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

realm  of  England,  and  has  no  authority  beyond  her  own  territory, 
and  Lie  colonies,  which  she  has  planted  in  various  parts  of  the 
world.  It  is  no  small  proof  of  its  excellence,  however,  that  where 
it  has  once  taken  root,  it  has  never  been  superseded  ;  and  that  its 
direct  progress,  or  silent  sway,  has  never  failed  to  obliterate  the 
attachment  to  other  codes,  whenever  the  accidents  of  conquest  or 
cession  have  brought  it  within  the  reach  of  popular  opinion.  But 
there  is  another  sense,  (which  is  the  most  usual  sense,)  in  which  it 
is  called  the  common  law,  to  distinguish  it  from  the  statute  law,  or 
the  positive  enactments  of  the  legislature.  In  this  sense,  the  com- 
mon law  is  the  lex  non  scripta,  that  is,  the  unwritten  law,  which 
cannot  now  be  traced  back  to  any  positive  text ;  but  is  composed  of 
customs,  and  usages,  and  maxims,  deriving  their  authority  from 
immemorial  practice,  and  the  recognitions  of  courts  of  justice. 
Thus,  the  right  of  primogeniture,  which  is  a  fundamental  rule  of 
inheritances  in  England,  does  not  depend  upon  any  known  statute, 
but  upon  the  simple  custom  of  the  realm,  of  such  high  antiquity, 
that  history  does  not  reach  its  exact  origin.  Much,  indeed,  of  this 
unwritten  law  may  now  be  found  in  books,  in  elementary  treatises, 
and  in  judicial  decisions.  But  it  does  not  derive  its  force  from 
these  circumstances.  On  the  contrary,  even  judicial  decisions  are 
deemed  but  the  formal  promulgation  of  rules  antecedently  existing, 
and  obtain  all  their  value  from  their  supposed  conformity  to  those 
rules. 

When  our  ancestors  emigrated  to  America,  they  brought  this 
common  law  with  them,  as  their  birthright  and  inheritance  ;  and 
they  put  into  operation  so  much  of  it,  as  was  applicable  to  their 
situation.  It  became  the  basis  of  the  jurisprudence  of  all  the 
English  colonies  ;  and,  except  so  far  as  it  has  been  abrogated 
or  modified  by  our  local  legislation,  it  remains  to  this  very 
hour  the  guide,  the  instructor,  the  protector,  and  the  ornament  of 
every  state  within  this  republic,  whose  territory  lies  within  our 
boundaries  settled  by  the  treaty  of  peace  of  1783.  May  it  ever 
continue  to  flourish  here  ;  for  it  is  the  law  of  liberty,  and  the  watch- 
ful and  inflexible  guardian  of  private  property  and  public  rights. 

It  is  of  this  common  law,  in  its  largest  extent,  that  the  Law  Insti- 
tution in  this  University  proposes  to  expound  the  doctrines  and 
diversities  ;  and  thus  to  furnish  the  means  of  a  better  juridical 
education  to  those,  who  are  destined  for  the  profession,  as  well  as 
to  those,  who,  as  scholars  and  gentlemen,  desire  to  learn  its  general 
principles. 


INAUGURAL    DISCOLRSK.  443 

Nor  let  any  scholar  or  gentleman  imagine,  that  the  study  is  little 
worthy  his  attention,  unless  he  is  to  engage  in  it  for  professional 
objects.  I  do  not  exaggerate  its  value,  when  I  express  the  delib- 
erate opinion,  that  there  is  not  within  the  compass  of  human 
attainment  any  science,  which  has  so  direct  a  tendency  as  this,  to 
strengthen  the  understanding,  to  enlarge  its  powers,  to  sharpen  its 
sagacity,  and  to  form  habits  of  nice  and  accurate  discrimination. 
Sir  James  Mackintosh,  an  elegant  scholar,  as  well  as  a  very  com- 
petent judge,  has  said,*  that  "  More  understanding  has,  perhaps, 
been  in  this  manner  exerted  to  fix  the  rules  of  life,  than  in  any 
other  science  ;  and  it  is  certainly  the  most  honorable  occupation  of 
the  understanding,  because  it  is  the  most  immediately  subservient 
to  general  safety  and  comfort."  If  this  were  a  question  dependent 
upon  mere  authority,  perhaps  testimony  more  unexceptionable  to 
the  general  scholar  might  be  drawn  from  other  sources.  Dr.  John- 
son, with  his  accustomed  vigor  of  expression  has  stated,  that  "Law 
is  the  science,  in  which  the  greatest  powers  of  the  understanding 
are  applied  to  the  greatest  number  of  facts."  And  Mr.  Burke, 
himself  an  orator  and  statesman  of  the  most  enlarged  research,  has 
not  hesitated  to  declare,  that  it  is  "  One  of  the  first  and  noblest  of 
human  sciences ;  a  science,  which  does  more  to  quicken  and 
invigorate  the  understanding  than  all  other  kinds  of  learning  put 
together."  f 

But  there  is  little  need  to  appeal  to  the  testimonies  of  the  living 
or  the  dead  upon  such  a  topic.  Whoever  will  take  the  trouble  to 
reflect  upon  the  vast  variety  of  subjects,  with  which  it  is  conver- 
sant, and  the  almost  infinite  diversity  of  human  transactions,  to 
which  it  applies  ;  whoever  will  consider,  how  much  astuteness  and 
ingenuity  are  required  to  unravel  or  guard  against  the  contrivances 
of  fraud  and  the  indiscretions  of  folly,  the  caprices  of  the  wise  and 
the  errors  of  the  rash,  the  mistakes  of  pride,  the  confidence  of 
ignorance,  and  the  sallies  of  enterprise  ;  will  be  at  no  loss  to  under- 
stand, that  there  will  be  ample  employment  for  the  highest  facul- 
ties. If  he  will  but  add  to  the  account,  that  law  is  a  science,  which 
must  be  gradually  formed  by  the  successive  efforts  of  many  minds 
in  many  ages  ;  that  its  rudiments  sink  deep  into  remote  antiquity, 
and  branch  wider  and   wider  with   every  new  generation ;  that  it 


*  Introductory  Discourse  cu  the  Study  of  the  Law  of  Nature  and  Nations. 
p.  62,  (3d  edition.) 

t   Speech  on  Ameriran  Taxation,  177  1. 


444  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

seeks  to  measure  the  future  by  approximations  to  certainty,  derived 
solely  from  the  experience  of  the  past ;  that  it  must  for  ever  be  in 
a  state  of  progress,  or  change,  to  adapt  itself  to  the  exigencies  and 
changes  of  society  ;  that,  even  when  the  old  foundations  remain 
firm,  the  shifting  channels  of  business  must  often  leave  their  wonted 
beds  deserted,  and  require  new  and  broader  substructions  to  accom- 
modate and  support  new  interests  ;  *  if,  I  say,  he  will  but  add  these 
things  to  the  account,  it  will  soon  become  matter  of  surprise,  that 
even  the  mightiest  efforts  of  genius  can  keep  pace  with  such  inces- 
sant demands  ;  and  that  the  powers  of  reasoning,  tasked  and  sub- 
tilized, as  they  must  be,  to  an  immeasurable  extent,  should  not  be 
absolutely  overwhelmed  in  the  attempt  to  administer  justice. 

From  its  nature  and  objects,  the  common  law,  above  all  others, 
employs  a  most  severe  and  scrutinizing  logic.  In  some  of  its 
branches  it  is  compelled  to  deal  with  metaphysical  subtilties  and 
abstractions,  belonging  to  the  depths  of  intellectual  philosophy. 
From  this  cause  it  has  sometimes  been  in  danger  of  being  enslaved 
by  scholastic  refinements,  by  the  jargon  of  the  old  dialectics,  and 
the  sophisms  of  over  curious  minds.  It  narrowly  escaped  ship- 
wreck in  the  hands  of  the  schoolmen  of  the  middle  ages  ;  and  for 
a  while  was  almost  swallowed  up  in  the  quicksands  of  the  feudal 
system.  If  it  had  not  been,  that  the  common  law  necessarily  dealt 
with  substances,  instead  of  shadows,  with  men's  business,  and  rights, 
and  inheritances,  and  not  with  entities  and  notions,  it  would  have 
shared  the  fate,  or  justified  the  satire  pronounced  upon  metaphysical 
inquiries,  that  those,  who  have  attempted  to  sound  its  depths, 

"  In  that  unfathomable  gulf  were  drowned." 

But  common  sense  has  at  all  times  powerfully  counteracted  the 
tendency  to  undue  speculation  in  the  common  law,  and  silently 
brought  back  its  votaries  to  that,  which  is  the  end  of  all  true  logic, 
the  just  application  of  principles  to  the  actual  concerns  of  human 
life.  One  cannot  but  smile,  in  the  present  times,  at  some  of  the 
reasoning,  and  some  of  the  fictions,  which  spread  themselves,  here 
and  there,  in  small  veins  in  the  system.  We  are  gravely  told,  for 
instance,  by  Bracton,  in  which  he  is  followed  by  Lord  Coke,  that 
the  true  reason,  why  by  the  common  law  a  father  cannot  inherit 
real  estate  by  descent  from  his  son,  is,  that  inheritances  are  heavy, 
and  descend,  as  it  were,   by   the   laws  of  gravitation,  and  cannot 


"  See  Lord  Hale's  noble  Discourse  on  the  Amendment  of  the  Law,  ch.  3. 


INAUGURAL    DISCOURSE.  445 

reascend.*  We  are  again  told,  that,  when  the  title  to  an  estate  is 
suspended  upon  future  contingencies,  the  inheritance  is  in  the  mean 
time  in  abeyance,  that  is,  (as  we  are  taught  by  the  accompanying 
explanations,)  the  inheritance  is  in  gremio  legis,  or  in  nubibus,  in 
the  bosom  of  the  law,  or  in  the  clouds,  which  seems  to  mend  the 
matter  exceedingly  in  point  of  plainness.  And,  again,  when  an 
estate  is  conveyed  to  trustees  to  serve  existing  uses,  and  future 
contingent  uses  also,  we  are  told,  that  though  a  seisin  is  necessary 
to  feed  them,  and  it  be  now  exhausted  ;  yet,  happily  for  us,  there 
remains  a  possibility  of  seisin,  a  scintilla  juris,  which  kindles  at 
the  very  moment  the  new  uses  spring  into  being,  and  by  its  vital 
power  executes  at  once  the  possession  of  the  estate  to  those  uses, 
by  some  sort  of  legal  legerdemain.f  Shakspeare  has  immortalized 
by  his  genius  the  report  of  a  case  in  that  book  of  painful  learning, 
Plowden's  Commentaries,  J  in  which  Lady  Margaret  Hales,  by  the 
suicide  of  her  husband,  lost  an  estate  by  forfeiture  to  the  crown, 
which  she  held  jointly  with  him.  One  of  the  learned  judges  upon 
that  occasion,  in  order  to  establish  the  legal  conclusion,  that  the 
party  killed  himself  in  his  lifetime,  reasoned  in  this  manner  :  "  The 
felony  is  attributed  to  the  act,  which  act  is  always  done  by  a  living 
man,  and  in  his  lifetime  ;  for  Sir  James  Hales  was  dead,  and  how 
came  he  to  his  death  ?  It  may  be  answered,  By  drowning.  And 
who  drowned  him  ?  Sir  James  Hales.  And  when  did  he  drown 
him  ?  In  his  lifetime.  So  that  Sir  James  Hales,  being  alive, 
caused  Sir  James  Hales  to  die  ;  and  the  act  of  the  living  man  was 
the  death  of  the  dead  man.  And  then  for  this  offence  it  is  reasona- 
ble to  punish  the  living  man,  who  committed  the  offence,  and  not 
the  dead  man.  But  how  can  he  be  said  to  be  punished  alive,  when 
the  punishment  comes  after  his  death  ?  "  &c.  &c. 

But,  apart  from  a  few  blemishes  of  this  sort,  which  belong,  in- 
deed, rather  to  the  studies  of  the  age  than  to  the  law,  and  are 
now  so  harmless,  that  they  serve  little  more  than  to  give  point  to 
some  sarcasm  upon  the  profession,  it  is  certain,  that  the  common 
law  follows  out  its  principles  with  a  closeness  and  simplicity  of  rea- 
soning, which  approach,  as  near  as  any  artificial  or  moral  deductions 
can,  to  the  rigor  of  demonstration. 


*  "  Descendit  itaque  jus,  quasi  ponclerosum  quid  cadens  deorsum  recta  linea, 
vel  transversali,  et  nunquam  reasccndit  ea  via  qua  descendit."  Bracton,  lib.  2, 
ch.  29;  Co.  Litt.  11 ;  2  Bl.  Com.  212. 

t  Chudleigh'9  case  (1  Co.  Rep.  120)  contains  some  curious  reasoning  on  this 
subject. 

j  Plowden's  Com.  258,  262. 


446  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

How,  indeed,  can  it  be  otherwise  ?  It  is  not  employed  in  closet 
speculations,  in  the  silence  of  the  monastery,  or  in  the  seclusion  of 
private  life.  Every  cause  is  heard  in  the  presence  of  men,  whom 
practice  and  study  have  made  singularly  acute  and  discriminating. 
The  advocate  is  stimulated,  not  merely  by  the  hope  of  reward, 
and  devotion  to  his  client,  but  by  the  love  of  fame,  to  exert  all  his 
talents  in  order  to  detect  fallacies  and  answer  objections.  He  is 
not  at  liberty,  from  mere  courtesy  or  kindness,  from  private  respect, 
or  popular  feeling,  to  gloss  over  the  mistakes,  or  conceal  the  blun- 
ders, or  suppress  the  inconsistencies  of  the  argument  of  his  adver- 
sary. In  such  places,  and  on  such  occasions,  the  law  expects 
every  man  to  do  his  duty,  and  his  whole  duty.  He  must  search 
the  dark,  explore  the  weak,  clear  the  doubtful,  or  confirm  the 
strong  points  of  his  cause,  as  its  exigencies  may  require.  In  such 
contests,  victory  is  rarely  to  be  won,  victory,  I  had  almost  said,  is 
never  won,  without  an  arduous  struggle.  Mere  fanciful  analogies, 
and  set  phrases,  and  fine  turns  of  expression,  and  plausible  state- 
ments will  not  do.  They  are  but  shadows  or  mists,  which  hover 
over  the  pathways  to  truth,  but  do  not  impede  them.  They  may 
blind  the  novice,  or  betray  the  ignorant ;  but  they  do  not  deceive 
the  wary  and  experienced  traveller.  There  must  be  a  firmer  and 
closer  grapple  with  realities.  The  contest  is  fit  for  men  of  strong 
sinews,  and  deep  thoughts ;  and  such  men,  in  all  ages,  have  been 
found  foremost  in  the  ranks  of  the  bar,  and  eager  for  its  distinctions. 
To  the  inquisitive  scholar  and  gentleman,  therefore,  the  law  will 
be  found  a  study  full  of  instruction,  and  admirably  adapted  to  brace 
his  mind  to  a  wholesome  discipline.  He  will  thus  avoid  what 
Lord  Bacon  considers  some  of  the  greatest  obstacles  to  knowledge. 
For,  says  he,  "  Facility  to  believe,  impatience  to  doubt,  temerity  to 
answer,  glory  to  know,  doubt  to  contradict,  end  to  gain,  sloth  to 
search,  seeking  things  in  words,  resting  in  part  of  nature  ;  these,  and 
the  like,  have  been  the  things,  which  have  forbidden  the  happy 
match  between  the  mind  of  man,  and  the  nature  of  things."  * 

I  might  commend  the  study  of  the  law  to  American  citizens  gen- 
erally upon  considerations  of  a  broader  cast.  From  the  structure 
of  our  institutions,  there  is  much  to  provoke  the  vigilance,  and  invite 
the  leisure  of  all,  and  especially  of  educated  men.  Our  government 
is  emphatically  a  government  of  the  people,  in  all  its  departments. 
It  purports  to  be  a  government  of  laws,  and  not  of  men ;  and  yet, 

*  Praise  of  Knowledge,  2  Bacon's  Works,  125. 


INAUGURAL    DISCOURSE.  447 

beyond  all  others,  it  is  subject  to  the  control  and  influence  of  public 
opinion.  Its  whole  security  and  efficiency  depend  upon  the  intelli- 
gence, virtue,  independence,  and  moderation  of  the  people.  It  can 
be  preserved  no  longer  than  a  reverence  for  settled,  uniform  laws 
constitutes  the  habit,  I  had  almost  said  the  pas-ion,  of  the  commu- 
nity. There  can  be  no  freedom,  where  there  is  no  safety  to 
property,  or  personal  rights.  Whenever  legislation  renders  the 
possession  or  enjoyment  of  property  precarious  ;  whenever  it  cuts 
down  the  obligation  and  security  of  contracts;  whenever  it  breaks 
in  upon  personal  liberty,  or  compels  a  surrender  of  personal  privi- 
leges, upon  any  pretext,  plausible  or  otherwise,  it  matters  little, 
whether  it  be  the  act  of  the  many,  or  the  few,  of  the  solitary  despot, 
or  the  assembled  multitude  ;  it  is  still  in  its  essence  tyranny.  It 
matters  still  less,  what  are  the  causes  of  the  change  ;  whether  urged 
on  by  a  spirit  of  innovation,  or  popular  delusion,  or  state  necessity, 
(as  it  is  falsely  called,)  it  is  still  power,  irresponsible  power,  against 
right;  and  the  more  to  be  dreaded,  when  it  has  the  sanction  of 
numbers,  because  it  is  then  less  capable  of  being  resisted  or  evaded. 
Unfortunately,  at  such  times  the  majority  prevail  by  mere  numbers, 
and  not  by  force  of  judgment;  numerantur,  nun  ponderantur.  I  do 
not,  therefore,  overestimate  its  value,  when  I  say,  that  a  knowledge 
of  the  law  and  a  devotion  to  its  principles  are  vital  to  a  republic, 
and  lie  at  the  very  foundation  of  its  strength. 

An  American  citizen  has  many  political  duties  to  perform  ;  and  his 
activity  is  constantly  demanded  for  the  preservation  of  the  public 
interests.  He  must  watch  the  exercise  of  power  in  every  depart- 
ment of  government ;  and  ascertain,  whether  it  is  within  the  pre- 
scribed limits  of  the  constitution.  He  is  to  study  deeply  and 
thoroughly  the  elements,  which  compose  that  constitution  ;  ele- 
ments, which  were  the  slow  results  of  genius  and  patriotism,  acting 
upon  the  largest  views  of  human  experience.  The  reasons,  on 
which  every  part  of  this  beautiful  system  is  built,  (may  it  be  as  dura- 
ble, as  it  is  beautiful ! )  are  to  be  examined  and  weighed.  Slight 
inconveniences  are  not  to  overturn  them  ;  slight  objections  are  not 
to  undermine  them.  Whatever  is  human  is  necessarily  imperfect ; 
whatever  is  practical  necessarily  deviates  from  theory;  whatever 
works  by  human  agency  works  with  some  inequality  of  movement  and 
result.  It  is  easier  to  point  out  defects  than  to  devise  remedies;  to 
touch  blemishes  than  to  extract  them  ;  to  demolish  an  edifice  than 
to  erect  a  convenient  substitute.  We  may  not  say  of  forms  of 
government,   "  Whate'er  is  best  administered  is  best."     But  we 


448  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

may  say,  that  that,  which  generally  works  well,  should  rarely  be 
hazarded  upon  the  chances  of  a  better.  It  has  been  observed  by  a 
profound  statesman,  that  the  abstract  perfection  of  a  government, 
with  reference  to  natural  rights,  may  be  its  practical  defect.  By  hav- 
ing a  right  to  do  every  thing,  men  may  want  every  thing.*  Great 
vigilance  and  great  jealousy  are  therefore  necessary  in  republics,  to 
guard  against  the  captivations  of  theory,  as  well  as  the  approaches 
of  more  insidious  foes.  Governments  are  not  always  overthrown  by 
direct  and  open  assaults.  They  are  not  always  battered  down  by 
the  arms  of  conquerors,  or  the  successful  daring  of  usurpers.  There 
is  often  concealed  the  dry  rot,  which  eats  into  the  vitals,  when  all 
is  fair  and  stately  on  the  outside.  And  to  republics  this  has  been 
the  more  common  and  fatal  disease.  The  continual  drippings  of 
corruption  may  wear  away  the  solid  rock,  when  the  tempest  has 
failed  to  overturn  it.  In  a  monarchy,  the  subjects  may  be  content 
to  trust  to  the  hereditary  sovereign  and  the  hereditary  nobility  the 
general  superintendence  of  legislation  and  property.  But  in  a  re- 
public, every  citizen  is  himself  in  some  measure  entrusted  with 
the  public  safety,  and  acts  an  important  part  for  its  weal  or  woe. 

Our  government  also  opens  the  widest  field  for  talents  and  exer- 
tion to  every  rank  of  life.  Few  men,  comparatively  speaking,  may 
not  indulge  the  hope,  if  they  covet  the  distinction,  at  some  time  to 
have  a  seat  in  the  public  councils,  and  assist  in  the  public  legisla- 
tion. What  can  be  more  important  or  useful  in  such  a  station,  than 
a  knowledge  of  those  laws,  which  the  legislator  is  called  upon  to 
modify,  amend,  or  repeal  ?  How  much  doubt  may  a  single  injudi- 
cious amendment  introduce!  One  would  hardly  trust  to  an  unskil- 
ful artisan  the  repairs  of  any  delicate  machine.  There  would  be 
an  universal  exclamation  against  the  indiscretion  of  such  an  attempt. 
Yet  it  would  seem,  that  we  are  apt  to  think,  that  men  are  born 
legislators  ;  that  no  qualifications  beyond  plain  sense  and  common 
honesty  are  necessary  for  the  management  of  the  intricate  machine 
of  government ;  and,  above  all,  of  that  most  delicate  and  interesting 
of  all  machines,  a  republican  government.  To  adjust  its  various 
parts  requires  the  skill  of  the  wisest,  and  often  baffles  the  judg- 
ment of  the  best.     The  least  perturbation  at  the  centre  may  trans- 

*  Burke  on  the  French  Revolution.  The  whole  passage  is  worthy  of  commen- 
dation. It  begins  thus :  "Government  is  not  made  in  virtue  of  natural  rights, 
which  may  and  do  exist  in  total  independence  of  it,  and  exist  in  much  greater 
clearness,  and  in  a  much  greater  degree  of  abstract  perfection.  But  their  abstract 
perfection  is  their  practical  defect." 


INAUGURAL    DISCOURSE.  449 

mit  itself  through  every  line  of  its  movements  ;  as  the  dip  of  a 
pebble  on  the  calm  surface  of  a  lake  sends  its  circling  vibrations  to 
the  distant  shore. 

It  is  a  fact  well  known  to  professional  gentlemen,  that  more 
doubts  arise  in  the  administration  of  justice  from  the  imperfections 
of  positive  legislation,  than  from  any  other  source.  The  mistakes 
in  the  language  of  a  deed,  or  a  will,  rarely  extend  far  beyond  the 
immediate  parties  to  the  contractor  bounty.  And  yet  innumerable 
questions  of  interpretation  have  arisen  from  these  comparatively 
private  sources  of  litigation,  to  perplex  the  minds,  and  exhaust  the 
diligence  of  the  ablest  judges.  But  what  is  this  to  the  sweeping 
result  of  an  act  of  the  legislature,  which  declares  a  new  rule  for  a 
whole  state,  which  may  vary  the  rights,  or  touch  the  interests,  or 
control  the  operations,  of  thousands  of  its  citizens  ?  If  the  legisla- 
tion is  designedly  universal  in  its  terms,  infinite  caution  is  necessary, 
to  prevent  its  working  greater  mischiefs  than  it  purports  to  cure. 
If,  on  the  other  band,  it  aims  only  at  a  single  class  of  mischiefs,  to 
amend  an  existing  defect,  or  provide  for  a  new  interest,  there  is  still 
great  danger,  that  its  provisions  may  reach  beyond  the  intent,  and 
embrace  what  would  have  been  most  sedulously  excluded,  if  it  had 
been  foreseen  or  suspected.  An  anecdote  told  of  Lord  Coke  may 
serve  as  an  appropriate  illustration.  A  statesman  told  him,  that  he 
meant  to  consult  him  on  a  point  of  law.  "  If  it  be  common  law/'  said 
Lord  Coke,  "  I  should  be  ashamed  if  I  could  not  give  you  a  ready 
answer ;  but  if  it  be  statute  law,  I  should  be  equally  ashamed,  if  I 
answered  you  immediately."  *  What  an  admonition  is  this  !  And 
how  forcibly  does  it  teach  us  the  utility  of  a  knowledge  of  the 
general  principles  of  law  to  persons,  who  are  called  upon  to  perform 
the  functions  of  legislation  ! 

But  to  gentlemen,  who  contemplate  public  life  with  higher 
objects,  who  indulge  the  ambition  of  being,  not  silent  voters,  but 
leaders  in  debate,  and  framers  of  laws,  and  guides  in  the  public 
councils,  every  consideration  already  urged  applies  with  tenfold 
force.  1  will  not  speak  of  the  disgrace  and  defeat,  which  must,  in 
such  stations,  follow  upon  the  exposure  of  ignorance  ;  nor  of  the 
easy  victory  achieved  by  those,  who  bring  to  the  controversy  a 
ready  knowledge,  over  those,  who  grope  in  the  dark,  and  rely  on 
their  own  rashness  for  success  ;  nor  of  the  intrinsic  difficulty,  in 
times  like  the   present,   of  commanding  public   confidence  without 


*  Teignmouth's  Life  of  Sir  W.  Jones,  268. 

57 


450  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

bringing  solid  wisdom  in  aid  of  popular  declamation.  But  I  would 
speak  to  the  consciences  of  honorable  men,  and  ask,  how  they  can 
venture,  without  any  knowledge  of  existing  laws,  to  recommend 
changes,  which  may  cut  deep  into  the  quick  of  remedial  justice, 
or  bring  into  peril  all  that  is  valuable  in  jurisprudence  by  its  cer- 
tainty, its  policy,  or  its  antiquity.  Surely,  they  need  not  be  told, 
how  slow  every  good  system  of  laws  must  be  in  consolidating  ; 
and  how  easily  the  rashness  of  an  hour  may  destroy,  what  ages 
have  scarcely  cemented  in  a  solid  form.  The  oak,  which  requires 
centuries  to  rear  its  trunk,  and  stretch  its  branches,  and  strengthen 
its  fibres,  and  fix  its  roots,  may  yet  be  levelled  in  an  hour.  It  may 
breast  the  tempest  of  a  hundred  years,  and  survive  the  scathing  of 
the  lightning.  It  may  even  acquire  vigor  from  its  struggles  with 
the  elements,  and  strike  its  roots  deeper  and  wider,  as  it  rises  in  its 
majesty  ;  and  yet  a  child,  in  the  very  wantonness  of  folly,  may  in 
an  instant  destroy  it  by  removing  a  girdle  of  its  bark. 

It  has  been  said,  that  a  spirit  of  innovation  is  generally  the  result 
of  a  selfish  temper  and  confined  views.*  Perhaps  this  is  pressing 
the  reasoning  too  far.  It  is  more  often  the  result  of  a  strong 
imagination  and  ardent  temperament,  working  upon  the  materials 
of  the  closet.  But  it  is  well  in  all  cases  to  remember  the  wise 
recommendation  of  Lord  Bacon,  "  that  men  in  their  innovations 
would  follow  the  example  of  time  itself;  which,  indeed,  innovateth 
greatly,  but  quietly,  and  by  degrees  scarce  to  be  perceived."  f 
And  nothing  can  introduce  more  sobriety  of  judgment  than  the 
experience  derived  from  the  history  of  jurisprudence  ;  and  thus 
check  what  has  been  so  happily  termed  too  great  a  fluidness, 
lubricity,  and  unsteadiness  in  the  laws.| 

It  is  not,  therefore,  from  mere  professional  pride  or  enthusiasm, 
that  I  would  urgently  recommend  to  gentlemen,  ambitious  of  pub- 
lic life,  some  devotion  to  the  study  of  the  law  ;  or  suggest  to  scholars, 
that  their  education  still  wants  perfection  and  polish,  unless  they 
have  mastered  its  elements.  In  doing  so,  I  do  little  more  than 
adopt  the  precept  of  Mr.  Locke,  who  says  it  is  so  requisite,  that 
he  knows  of  no  place,  from  a  justice  of  the  peace  to  a  minister  of 
state,  that  can  be  well  filled  without  it.<§>  And  in  the  days  of  For- 
tescue  it  was  esteemed  almost  a  necessary  accomplishment  for  a 
gentlemen  of  rank.|| 

*  Burke  on  the  French  Revolution,     t  Essay  24. 

*  Lord  Hale  in  liarg.  Tracts,  253.       §  Locke  on  Education,  p.  84. 
]|  Fortescue  De  Eegg.  ch.  49. 


INAUGURAL  DISCOURSE.  451 

But  my  principal  object  in  tins  discourse  is,  to  address  myself  to 
those,  who  intend  to  make  the  law  a  profession  for  life.  To  them 
it  seems  almost  unnecessary  to  recommend  the  study,  or  press  the 
ancient  precept, 

"  Versate  diu,  quid  ferre  recusent, 
Quid  valeant  humeri." 

To  them  the  law  is  not  a  mere  pursuit  of  pleasure  or  curiosity,  but 
of  transcendent  dignity,  as  it  opens  the  brightest  rewards  of  human 
ambition,  opulence,  fame,  public  influence,  and  political  honors.  I 
may  add,  too,  that  if  the  student  of  the  law  entertains  but  a  just 
reverence  for  its  precepts,  it  will  teach  him  to  build  his  reputation 
upon  the  soundest  morals,  the  deepest  principles,  and  the  most 
exalted  purity  of  life  and  character.  One  of  the  beautiful  boasts 
of  our  municipal  jurisprudence  is,  that  Christianity  is  a  part  of  the 
common  law,  from  which  it  seeks  the  sanction  of  its  rights,  and  by 
which  it  endeavours  to  regulate  its  doctrines.  And,  notwithstanding 
the  specious  objection  of  one  of  our  distinguished  statesmen,  the 
boast  is  as  true,  as  it  is  beautiful.  There  never  has  been  a  period, 
in  which  the  common  law  did  not  recognise  Christianity  as  lying  at 
its  foundations.*  For  many  ages  it  was  almost  exclusively  admin- 
istered by  those,  who  held  its  ecclesiastical  dignities.  It  now 
repudiates  every  act  done  in  violation  of  its  duties  of  perfect  obli- 
gation. It  pronounces  illegal  every  contract  offensive  to  its  morals. 
It  recognises  with  profound  humility  its  holidays  and  festivals,  and 
obeys  them,  as  dies  non  juridici.  It  still  attaches  to  persons 
believing  in  its  divine  authority  the  highest  degree  of  competency 
as  witnesses;  and,  until  a  comparatively  recent  period,  infidels  and 
pagans  were  banished  from  the  halls  of  justice,  as  unworthy  of 
credit.  The  error  of  the  common  law  was,  in  reality,  of  a  very 
different  character.  It  tolerated  nothing  but  Christianity,  as  taught 
by  its  own  established  church,  either  Protestant  or  Catholic  ;  and 
with  unrelenting  severity  consigned  the  conscientious  heretic  to  the 
stake,  regarding  his  very  scruples  as  proofs  of  incorrigible  wicked- 
ness. Thus,  justice  was  debased,  and  religion  itself  made  the 
minister  of  crimes,  by  calling  in  the  aid  of  the  secular  power  to 
enforce  that  conformity  of  belief,  whose  rewards  and  punishments 
belong  exclusively  to  God. 

*  See  the  remarks  of  Mr.  Justice  Park,  in  Smith  v.   Sparrow,  4.  Bing.    R. 
84,  88. 


452  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

But,  apart  from  this  defect,  the  morals  of  the  law  are  of  the 
purest  and  most  irreproachable  character.  And,  notwithstanding 
the  sneers  of  ignorance,  and  the  gihes  of  wit,  no  men  are  so  con- 
stantly called  upon  in  their  practice  to  exemplify  the  duties  of  good 
faith,  incorruptible  virtue,  and  chivalric  honor,  as  lawyers.  To 
them  is  often  entrusted  the  peace  and  repose,  as  well  as  the  prop- 
erty, of  whole  families ;  and  the  slightest  departure  from  profes- 
sional secrecy,  or  professional  integrity,  might  involve  their  clients 
in  ruin.  The  law  itself  imposes  upon  them  the  severest  injunctions 
never  to  do  injustice,  and  never  to  violate  confidence.  It  not  only 
protects  them  from  disclosing  the  secrets  of  their  clients,  but  it 
punishes  the  offenders,  by  disqualifying  them  from  practice.  The 
rebuke  of  public  opinion,  also,  follows  close  upon  every  offence  ; 
and  the  frown  of  the  profession  consigns  to  infamy  the  traitor,  and 
his  moral  treason.  Memorable  instances  of  this  sort  have  occurred 
in  other  ages,  as  well  as  in  our  own.  Even  the  lips  of  eloquence 
breathe  nothing  but  an  empty  voice  in  the  halls  of  justice,  if  the 
ear  listens  with  distrust  or  suspicion.  The  very  hypocrite  is  there 
compelled  to  wear  the  livery  of  virtue,  and  to  pay  her  homage.  If 
he  secretly  cherishes  a  grovelling  vice,  he  must  there  speak  the 
language,  and  assume  the  port  of  innocence.  He  must  feign,  if 
be  does  not  feel,  the  spirit  and  inspiration  of  the  place. 

I  would  exhort  the  student,  therefore,  at  the  very  outset  of  his 
career,  to  acquire  a  just  conception  of  the  dignity  and  importance 
of  his  vocation.  Let  him  not  debase  it  by  a  low  and  narrow  estimate 
of  its  requisites  or  its  duties.  Let  him  consider  it,  not  as  a  mere 
means  of  subsistence,  an  affair  of  petty  traffic  and  barter,  a  little 
round  of  manoeuvres  and  contrivances  to  arrest  some  runaway 
contract,  to  disinter  some  buried  relic  of  title,  or  to  let  loose  some 
imprisoned  wrong  from  the  vengeance  of  the  law.  Let  him  not 
dream,  that  all  is  well,  if  he  can  weave  an  intricate  net  of  special 
pleadings  to  catch  the  unwary  in  its  meshes;  or  hang  a  doubt  upon 
a  subtile  distinction  ;  or  quibble  through  the  whole  alphabet  of 
sophisms.  Let  him  not  imagine,  that  it  is  sufficient,  if  he  be  the 
thing  described  by  Cicero  in  his  scorn  ;  —  "  jurisconsultus  ipse  per 
se  nihil,  nisi  leguleius  quidam  cautus  et  acutus,  praeco  actionum, 
cantor  formularum,  auceps  syllabarum  ;"  *  "a  sharp  and  cunning 
pettifogger;  a  retailer  of  lawsuits ;  a  canter  about  forms,  and  a 
caviller  upon  words;"  —  or  one  of  the  tribe,  defined  by  a  master- 

*  Cicero,  De  Orat.  Lib.  i.  §  55. 


INAUGURAL    DISCOURSE.  453 

spirit  of  the  last  a^e,  as  the  ministers  of  municipal  litigation,  and 
the  fomenters  of  the  war  of  village  vexation.*  God  forbid,  that 
any  man,  standing  in  the  temple  and  in  the  presence  of  the  law, 
should  imagine  that  her  ministers  are  called  to  such  unworthy 
offices.  No.  The  profession  has  far  higher  aims  and  nohler 
purposes.f  In  the  ordinary  course  of  business,  it  is  true,  that 
sound  learning,  industry,  and  fidelity  are  the  principal  requisites, 
and  may  reap  a  fair  reward,  as  they  may  in  any  other  employment 
of  life.  But  there  are  some,  and  in  the  lives  of  most  lawyers 
many  occasions,  which  demand  qualities  of  a  higher,  nay,  of  the 
highest  order.  Upon  the  actual  administration  of  justice  in  all 
governments,  and  especially  in  free  governments,  must  depend 
the  welfare  of  the  whole  community.  The  sacred  rights  of  prop- 
erty are  to  be  guarded  at  every  point.  I  call  them  sacred,  because, 
if  they  are  unprotected,  all  other  rights  become  worthless  or  vis- 
ionary. What  is  personal  liberty,  if  it  does  not  draw  after  it  the 
right  to  enjoy  the  fruits  of  our  own  industry  ?  What  is  political 
liberty,  if  it  imparts  only  perpetual  poverty  to  us  and  all  our  pos- 
terity ?  What  is  the  privilege  of  a  vote,  if  the  majority  of  the 
hour  may  sweep  away  the  earnings  of  our  whole  lives,  to  gratify 
the  rapacity  of  the  indolent,  the  cunning,  or  the  profligate,  who  are 
borne  into  power  upon  the  tide  of  a  temporary  popularity  ?  What 
remains  to  nourish  a  spirit  of  independence,  or  a  love  of  country, 
if  the  very  soil,  on  which  we  tread,  is  ours  only  at  the  beck  of  the 
village  tyrant  ?  If  the  home  of  our  parents,  which  nursed  our 
infancy  and  protected  our  manhood,  may  be  torn  from  us  without 
recompense  or  remorse  ?  If  the  very  graveyards,  which  contain 
the  memorials  of  our  love  and  our  sorrow,  are  not  secure  against 
the  hands  of  violence  ?  If  the  church  of  yesterday  may  be  the 
barrack  of  to-day,  and  become  the  gaol  of  to-morrow  ?  If  the 
practical  text  of  civil  procedure  contains  no  better  gloss  than  the 
Border  maxim,  that  the  right  to  plunder  is  only  bounded  by  the 
power  ? 

One  of  the  glorious,  and  not  unfrequently  perilous  duties  of  the 
Bar  is  the  protection  of  property  ;  and  not  of  property  only,  but  of 
personal  rights,  and  personal  character;   of  domestic  peace,  and 

*  Burke's  Reflections  on  the  French  Revolution. 

t  I  wouKl  commend  to  students  the  perusal  of  Mr.  (now  Judge)  Hopkinson's 
Address  hefore  the  Law  Academy  of  Philadelphia,  in  1S2G.  It  abounds  with 
just  remarks,  chaste  diction,  and  unpretending  eloquence.  Its  matters  and  its 
style  are  excellent. 


454  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

parental  authority.  The  lawyer  is  placed,  as  it  were,  upon  the  out- 
post of  defence,  as  a  public  sentinel,  to  watch  the  approach  of  dan- 
ger, and  to  sound  the  alarm,  when  oppression  is  at  hand.  It  is  a 
post,  not  only  full  of  observation,  but  of  difficulty.  It  is  his  duty 
to  resist  wrong,  let  it  come  in  whatever  form  it  may.  The  attack 
is  rarely  commenced  in  open  daylight ;  but  it  makes  its  approaches 
by  dark  and  insidious  degrees.  Some  captivating  delusion,  some 
crafty  pretext,  some  popular  scheme,  generally  masks  the  real  de- 
sign. Public  opinion  has  been  already  won  in  its  favor,  or  drugged 
into  a  stupid  indifference  to  its  results,  by  the  arts  of  intrigue. 
Nothing,  perhaps,  remains  between  the  enterprise  and  victory,  but 
the  solitary  citadel  of  public  justice.  It  is  then  the  time  for  the 
highest  efforts  of  the  genius,  and  learning,  and  eloquence,  and 
moral  courage  of  the  Bar.  The  advocate  not  unfrequently  finds 
himself,  at  such  a  moment,  putting  at  hazard  the  popularity  of  a 
life  devoted  to  the  public  service.  It  is  then,  that  the  denuncia- 
tions of  the  press  may  be  employed  to  overawe  or  intimidate  him. 
It  is  then,  that  the  shouts  of  the  multitude  drown  the  still,  small 
voice  of  the  unsheltered  sufferer.  It  is  then,  that  the  victim  is 
already  bound  for  immolation  ;  and  the  advocate  stands  alone,  to 
maintain  the  supremacy  of  the  law  against  power,  and  numbers, 
and  public  applause,  and  private  wealth.  If  he  shrinks  from  his 
duty,  he  is  branded  as  the  betrayer  of  his  trust.  If  he  fails  in  his 
labor,  he  may  be  cut  down  by  the  same  blow,  which  levels  his 
client.  If  he  succeeds,  he  may,  indeed,  achieve  a  glorious  triumph 
for  truth,  and  justice,  and  the  law.  But  that  very  triumph  may  be 
fatal  to  his  future  hopes,  and  bar  up  for  ever  the  road  to  political 
honors.  Yet  what  can  be  more  interesting  than  ambition  thus  no- 
bly directed?  that  sinks  itself,  but  saves  the  state?  What  sacri- 
fice more  pure,  than  in  such  a  cause  ?  What  martyrdom  more 
worthy  to  be  canonized  in  our  hearts  ? 

It  may  be,  that  his  profession  calls  him  to  different  duties.  He 
may  be  required  to  defend  against  the  arm  of  the  government  a 
party  standing  charged  with  some  odious  crime,  real  or  imaginary. 
He  is  not  at  liberty  to  desert  even  the  guilty  wretch  in  his  lowest 
estate  ;  but  he  is  bound  to  take  care,  that  even  here  the  law  shall 
not  be  bent  or  broken  to  bring  him  to  punishment.  He  will,  at  such 
times,  from  love  of  the  law,  as  well  as  from  compassion,  freely  give 
his  talents  to  the  cause,  and  never  surrender  the  victim,  until  the 
judgment  of  his  peers  has  convicted  him  upon  legal  evidence.  A 
duty,  not  less  common,  or  less  interesting,  is  the   vindication  of  in- 


INAUGURAL  DISCOURSE.  455 

nocence  against  private  injustice.  Rank,  and  wealth,  and  patron- 
age may  be  on  one  side  ;  and  poverty  and  distress  on  the  other. 
The  oppressor  may  belong  to  the  very  circle  of  society,  in  which 
we  love  to  move,  and  where  many  seductive  influences  may  be 
employed  to  win  our  silence.  The  advocate  may  be  called  upon 
to  require  damages  from  the  seducer  for  his  violation  of  domestic 
peace;  or  to  expose  to  public  scorn  the  subtle  contrivances  of 
fraud.  The  ardor  of  youth  may  have  been  ensnared  by  cunningly 
devised  counsels  to  the  ruin  of  his  estate.  The  drivelling  of  age 
may  have  been  imposed  on  to  procure  a  grant  or  a  will,  by  which 
nature  is  outraged,  and  villany  rewarded.  Religion  itself  may 
have  been  treacherously  employed  at  the  side  of  the  death-bed  to 
devour  the  widow's  portion,  or  plunder  the  orphan.  In  these,  and 
many  other  like  cases,  the  attempt  to  unravel  the  fraud,  and  ex- 
pose the  injury,  is  full  of  delicacy,  and  may  incur  severe  displeasure 
among  friends,  and  yield  a  triumph  to  enemies.  But  it  is  on  such 
occasions,  that  the  advocate  rises  to  a  full  sense  of  the  dignity  of 
his  profession,  and  feels  the  power  and  the  responsibility  of  its 
duties.  He  must  then  lift  himself  to  thoughts  of  other  days,  and 
other  times ;  to  the  great  moral  obligations  of  his  profession  ;  to 
the  eternal  precepts  of  religion  ;  to  the  dictates  of  that  voice,  which 
speaks  within  him  from  beyond  the  grave,  and  demands,  that  the 
mind,  given  by  God,  shall  be  devoted  to  his  service,  without  the 
fear,  and  without  the  frailty  of  man. 

But,  whatever  may  be  the  dignity  and  the  brilliancy  either  of 
fame  or  fortune,  which  the  profession  holds  out  to  those,  who  strive 
for  eminence  in  the  law,  the  student  should  never  imagine,  that  the 
ascent  is  easy,  or  the  labor  light.  There  cannot  be  any  delusion 
cherished,  more  fatal  to  his  ultimate  success  than  this.  Young  men 
of  gay  and  ardent  temperaments  are  apt  to  imagine,  that  little  more 
is  necessary  than  to  read  a  few  elementary  books  with  reasonable 
diligence,  and  the  rewards  are  already  within  their  grasp.  They 
fondly  indulge  the  belief,  that  fluency  of  speech,  a  kindling  imagi- 
nation, ready  wit,  graceful  action,  and  steady  self-confidence  will 
carry  them  through  every  struggle.  If  they  can  but  address  a 
court  or  jury  without  perturbation,  and  state  their  points  with  clear- 
ness and  order,  the  rest  may  fairly  be  left  to  the  workings  of  their 
own  minds  upon  the  excitements  of  the  occasion.  That,  because 
the  hour  is  come,  and  the  trial  is  come,  the  inspiration  for  the  cause 
will  come  also. 


456  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

Whoever  shall  indulge  in  such  visionary  views  will  find  his 
career  end  in  grievous  disappointment,  if  not  in  disgrace.  I  know 
not,  if  among  human  sciences  there  is  any  one,  which  requires  such 
various  qualifications  and  extensive  attainments,  as  the  law.  While 
it  demands  the  first  order  of  talents,  genius  alone  never  did,  and 
never  can,  win  its  highest  elevations.  There  is  not  only  no  royal 
road  to  smooth  the  way  to  the  summit  ;  but  the  passes,  like  those 
of  Alpine  regions,  are  sometimes  dark  and  narrow;  sometimes  hold 
and  precipitous  ;  sometimes  dazzling  from  the  reflected  light  of 
their  naked  fronts  ;  and  sometimes  bewildering  from  the  shadows 
projecting  from  their  dizzy  heights.  Whoever  advances  for  safety 
must  advance  slowly.  He  must  cautiously  follow  the  old  guides,  and 
toil  on  with  steady  footsteps;  for  the  old  paths,  though  well  beaten, 
are  rugged  ;  and  the  new  paths,  though  broad,  are  still  perplexed. 
To  drop  all  metaphor,  the  law  is  a  science,  in  which  there  is  no  sub- 
stitute for  diligence  and  labor.  It  is  a  fine  remark  of  one,  who  is  him- 
self a  brilliant  example  of  all  he  teaches,  that  "  It  appears  to  be  the 
general  order  of  Providence,  manifested  in  the  constitution  of  our 
nature,  that  every  thing  valuable  in  human  acquisition  should  be 
the  result  of  toil  and  labor."  *  But  this  truth  is  no  where  more 
forcibly  manifested  than  in  the  law.  Here,  moderate  talents  with 
unbroken  industry  have  often  attained  a  victory  over  superior 
genius,  and  cast  into  shade  the  brightest  natural  parts. 

The  student,  therefore,  should,  at  his  first  entrance  upon  the 
study,  weigh  well  the  difficulties  of  his  task,  not  merely  to  guard 
himself  against  despondency  on  account  of  expectations  too  san- 
guinely  indulged  ;  but  also  to  stimulate  his  zeal,  by  a  proper 
estimate  of  the  value  of  perseverance.  He,  who  has  learned  to 
survey  the  labor  without  dismay,  has  achieved  half  the  victory. 
I  will  not  say,  with  Lord  Hale,  that  "  The  law  will  admit  of  no  rival, 
and  nothing  to  go  even  with  it ;  "  but  1  will  say,  that  it  is  a  jealous 
mistress,  and  requires  a  long  and  constant  courtship.  It  is  not  to 
be  won  by  trifling  favors,  but  by  a  lavish  homage. 

Many  causes  combine  to  make  the  study  of  the  common  law, 
at  the  present  day,  a  laborious  undertaking.  In  the  first  place,  it 
necessarily  embraces  the  reasoning  and  doctrines  of  very  remote 
ages.      It  is,  as  has  been  elegantly  said,  "  The  gathered  wisdom  of 


*  Chancellor  Kent's  Introductory   Discourse,  p.  8.     Why  has  this  finished  Dis- 
course been  withdrawn  from  his  Commentaries? 


INAUGURAL    DISCOURSE.  457 

a  thousand  years;"*  or,  in  the  language  of  one  of  the  greatest  of 
English  judges,  it  is  not  "  the  product  of  the  wisdom  of  some  one 
man,  or  society  of  men,  in  any  one  age  ;  but  of  the  wisdom,  coun- 
sel, experience,  and  observation  of  many  ages  of  wise  and  observing 
men."f  It  is  a  system  having  its  foundations  in  natural  reason  ; 
but,  at  the  sa  e  time  built  up  and  perfected  by  artificial  doctrines, 
adapted  and  moulded  to  the  artificial  structure  of  society.  The 
law,  for  instance,  which  governs  the  titles  to  real  estate,  is  princi- 
pally derived  from  the  feudal  polity  and  usages,  and  is  in  a  great 
measure  unintelligible  without  an  intimate  acquaintance  with  the 
peculiarities  of  that  system.  This  knowledge  is  not,  even  now,  in  all 
cases  easily  attainable  ;  but  must  sometimes  be  searched  out  amidst 
the  dusty  ruins  of  antiquity,  or  traced  back  through  black-lettered 
pages  of  a  most  forbidding  aspect  both  in  language  and  matter. 
The  old  law,  too,  is  not  only  of  an  uncouth  and  uninviting  appear- 
ance ;  but  it  abounds  with  nice  distinctions,  and  subtile  refinements, 
which  enter  deeply  into  the  modern  structure  of  titles.  No  man, 
even  in  our  day,  can  venture  safely  upon  the  exposition  of  an 
intricate  devise,  or  of  the  effect  of  a  power  of  appointment,  or  of  a 
deed  to  lead  uses  and  trusts,  who  has  not,  in  some  good  degree, 
mastered  its  learning.  More  than  two  centuries  ago,  Sir  Henry 
Spelmanf  depicted  his  own  distress  on  entering  upon  such 
studies,  when  at  the  very  vestibule  he  was  met  by  a  foreign  lan- 
guage, a  barbarous  dialect,  an  inelegant  method,  and  a  mass  of 
learning,  which  could  be  borne  only  upon  the  shoulders  of  Atlas  ; 
and  frankly  admitted,  that  his  heart  sunk  within  him  at  the  prospect. 
The  defects  of  a  foreign  tongue,  and  barbarous  dialect,  and  inele- 
gant method,  have  almost  entirely  disappeared,  and  no  longer  vex  the 
student  in  his  midnight  vigils.  But  the  materials  for  his  labor  have 
in  other  respects  greatly  accumulated  in  the  intermediate  period. 
He  may,  perchance,  escape  from  the  dry  severity  of  the  Year- 
Books,  and  the  painful  digestion  of  the  Abridgments  of  Statham, 
Fitzherbert,  and  Brooke.  He  may  even  venture  to  glide  by  the 
exhausting  arguments  of  Plowden.  But  Lord  Coke,  with  his 
ponderous  Commentaries,  will  arrest  his  course ;  and,  faint  and 
disheartened  with  the  view,  he  must  plunge  into  the  labyrinths  of 
contingent  remainders,  and  executory   devises,   and  springing  uses  ; 

*  Teignmouth's  Life  of  Sir  W.  Jones,  100. 

t  Lonl  If  ale,  in  Preface  to  Rolle's  Abridgment,  1  Coll.  Jurid.  266. 
I  Preface  to  bis' Glossary.     The   passage   is  partially  quoted  in   1  Ulackstone's 
Com.  31,  not>;.     Sge,  also,  p.  227,  supra. 

58 


458  JURIDICAL    DISCOURSES     AND    ARGUMENTS. 

and  he  may  deem  himself  fortunate,  if,  after  many  years'  devotion  to 
Feame,  he  may  venture  upon  the  interpretation  of  that  darkest  of  all 
mysteries,  a  last  will  and  testament.  So  true  it  is,  that  no  man 
knows  his  own  will  so  ill,  as  the  testator ;  and  that  over-solicitude  to 
he  brief  and  simple  ends  in  being  profoundly  enigmatical.  "  Dum 
brevis  esse  laboro,  obscurus  fio." 

In  the  next  place,  as  has  been  already  hinted,  every  successive 
age  brings  its  own  additions  to  the  general  mass  of  antecedent 
principles.  If  something  is  gained  by  clearing  out  the  old  channels, 
much  is  added  by  new  increments  and  deposits.  If  here  and  there 
a  spring  of  litigation  is  dried  up,  many  new  ones  break  out  in  un- 
suspected places.  In  fact,  there  is  scarcely  a  single  branch  of  the 
law,  which  belonged  to  the  age  of  Queen  Elizabeth,  which  does 
not  now  come  within  the  daily  contemplation  of  a  lawyer  of  extensive 
practice.  And  all  these  branches  have  been  spreading  to  an  incal- 
culable extent  since  that  period,  by  the  changes  in  society,  wrought 
by  commerce,  agriculture,  and  manufactures,  and  other  efforts  of 
human  ingenuity  and  enterprise. 

We  are,  therefore,  called  upon  at  this  moment  to  encounter,  ay, 
and  to  master,  the  juridical  learning  of  the  three  last  centuries, 
during  which  the  talents  of  the  Bar,  and  the  researches  of  the 
Bench  are  embodied  in  solid  and  enduring  volumes.  Fortescue* 
has  told  us,  that  in  his  age  the  judges  did  not  sit  in  court  but  three 
hours  in  the  day  ;  and  that,  when  they  had  taken  their  refreshments, 
they  spent  the  rest  of  the  day  in  the  study  of  the  law,  reading  of 
the  Holy  Scriptures,  and  other  innocent  amusements,  at  their  pleas- 
ure ;  so  that  it  seemed  rather  a  life  of  contemplation  than  of  much 
action  ;  and  that  their  time  was  spent  in  this  manner,  free  from 
care  and  worldly  avocations.  The  case  was  greatly  changed  in  the 
succeeding  century ;  and  we  need  but  examine  the  ample  reports 
and  commentaries  of  Lord  Coke,  to  perceive  what  a  prodigious 
influx  of  learning  bore  down  the  profession  in  his  day.  At  the 
distance  of  another  century,  Lord  Hale  was  compelled  to  admit 
the  heavy  and  almost  overwhelming  burdens  of  the  law.  And 
we  in  the  nineteenth  century  may  well  look  with  some  apprehen- 
sion upon  the  accumulations  of  our  own  times.  It  is  not  an 
over-statement  to  declare,  that  the  labors  of  the  profession  now  are 
ten  times  as  great  as  they  were  in  the  days  of  Lord  Coke ;  and 
that  they  have   been   quadrupled   within   the   last  century.     The 

*  Fortescue,  De  Laud.  Legum  Angliae,  cap.  51. 


INAUGURAL  DISCOURSE.  459 

whole  series  of  English  reports,  down  to  the  Revolution  of  1688, 
scarcely  exceeds  one  hundred  volumes ;  while  those  since  that 
period  fall  little  short  of  three  hundred.  To  this  goodly  mass 
America  has  added,  within  the  short  space  of  twenty  years,  more 
than  two  hundred  volumes.  If  to  these  we  add  the  excellent 
elementary  treatises,  which  have  filled  our  libraries  during  these 
latter  periods,  we  shall  find,  that  not  merely  the  lucubrations  of 
twenty  years,  but  a  long  life,  will  scarcely  suffice  to  attain  the 
requisite  learning. 

In  truth,  the  common  law,  as  a  science,  must  be  for  ever  in 
progress ;  and  no  limits  can  be  assigned  to  its  principles  or  improve- 
ments. In  this  respect  it  resembles  the  natural  sciences,  where 
new  discoveries  continually  lead  the  way  to  new,  and  sometimes  to 
astonishing,  results.  To  say,  therefore,  that  the  common  law  is 
never  learned,  is  almost  to  utter  a  truism.  It  is  no  more  than  a 
declaration,  that  the  human  mind  cannot  compass  all  human  trans- 
actions. It  is  its  true  glory,  that  it  is  flexible,  and  constantly 
expanding  with  the  exigencies  of  society ;  that  it  daily  presents 
new  motives  for  new  and  loftier  efforts  ;  that  it  holds  out  for  ever 
an  unapproached  degree  of  excellence ;  that  it  moves  onward  in 
the  path  towards  perfection,  but  never  arrives  at  the  ultimate  point. 

But  the  student  should  not  imagine,  that  enough  is  done,  if  he 
has  so  far  mastered  the  general  doctrines  of  the  common  law,  that 
he  may  enter  with  some  confidence  into  practice.  There  are  other 
studies,  which  demand  his  attention.  He  should  addict  himself  to 
the  study  of  philosophy,  of  rhetoric,  of  history,  and  of  human 
nature.  It  is  from  the  want  of  this  enlarged  view  of  duty,  that 
the  profession  has  sometimes  been  reproached  with  a  sordid  narrow- 
ness, with  a  low  chicane,  with  a  cunning  avarice,  and  with  a  defi- 
ciency in  liberal  and  enlightened  policy.  Mr.  Burke  has  somewhat 
reluctantly  admitted  the  fact,  that  the  practice  of  the  law  is  not 
apt,  except  in  persons  very  happily  born,  to  open  and  liberalize  the 
mind  exactly  in  the  same  proportion  as  it  invigorates  the  under- 
standing ;  and  that  men  too  much  conversant  in  office  are  rarely 
minds  of  remarkable  enlargement.*1  And  Lord  Bacon  complains, 
that  lawyers  have  never  written  as  statesmen. f  The  reproach  is 
in  some  measure  deserved.  It  is,  however,  far  less  true  in  our  age 
than  in  former  times;  and  far  less  true  in  America  than  in  Eng- 


*  See  Burke's  Reflections  on  the    French  Revolution,  and  Speech  on  American 
Taxation. 

t   Lord  Bacon  on  the  Advancement  of  Learning,  1  Bacon's  Works,  218. 


460  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

land.  Many  of  our  most  illustrious  statesmen  have  been  lawyers  ; 
but  they  have  been  lawyers  liberalized  by  philosophy,  and  a  large 
intercourse  with  the  wisdom  of  ancient  and  modern  times.  The 
perfect  lawyer,  like  the  perfect  orator,  must  accomplish  himself  for 
his  duties  by  familiarity  with  every  study.  It  may  be  truly  said, 
that  to  him  nothing,  that  concerns  human  nature  or  human  art,  is 
indifferent  or  useless.  He  should  search  the  human  heart,  and 
explore  to  their  sources  the  passions,  and  appetites,  and  feelings  of 
mankind.  He  should  watch  the  motions  of  the  dark  and  malig- 
nant passions,  as  they  silently  approach  the  chambers  of  the  soul 
in  its  first  slumbers.  He  should  catch  the  first  warm  rays  of  sym- 
pathy and  benevolence,  as  they  play  around  the  character,  and  are 
reflected  back  from  its  varying  lines.  He  should  learn  to  detect 
the  cunning  arts  of  the  hypocrite,  who  pours  into  the  credulous  and 
unwary  ear  his  leperous  distilment.  He  should  for  this  purpose 
make  the  master-spirits  of  all  ages  pay  contribution  to  his  labors. 
He  should  walk  abroad  through  nature,  and  elevate  his  thoughts, 
and  warm  his  virtues,  by  a  contemplation  of  her  beauty,  and  mag- 
nificence, and  harmony.  He  should  examine  well  the  precepts  oi 
religion,  as  the  only  solid  basis  of  civil  society  ;  and  gather  from 
them,  not  only  his  duty,  but  his  hopes;  not  merely  his  consolations, 
but  his  discipline  and  his  glory.  He  should  unlock  all  the  treasures 
of  history  for  illustration,  and  instruction,  and  admonition.  He  will 
thus  see  man,  as  he  has  been,  and  thereby  best  know  what  he  is. 
He  will  thus  be  taught  to  distrust  theory,  and  cling  to  practical 
good;  to  rely  more  upon  experience  than  reasoning;  more  upon 
institutions  than  laws;  more  upon  checks  to  vice  than  upon 
motives  to  virtue.  He  will  become  more  indulgent  to  human 
errors  ;  more  scrupulous  in  means,  as  well  as  in  ends  ;  more  wise, 
more  candid,  more  forgiving,  more  disinterested.  If  the  melancholy 
infirmities  of  his  race  shall  make  him  trust  men  less,  he  may  yet 
learn  to  love  man  more. 

Nor  should  he  stop  here.  He  must  drink  in  the  lessons  and  the 
spirit  of  philosophy.  1  do  not  mean  that  philosophy  described  by 
Milton,  as 

"  A  perpetual  least  of  nectared  sweets 
Where  no  crude  surfeit  reigns  ;  " 

but  that  philosophy,  which  is  conversant  with  men's  business  and 
interests,  with  the  policy  and  the  welfare  of  nations;  that  philoso- 
phy, which  dwells,  not  in  vain  imaginations,  and  Platonic  dreams  ; 
but  which  stoops  to   life,   and  enlarges   the   boundaries   of  human 


INAUGURAL    DISCOURSE.  461 

happiness ;  that  philosophy,  which  sits  by  us  in  the  closet,  cheers 
us  by  the  fireside,  walks  with  us  in  the  fields  and  highways,  kneels 
with  us  at  the  altars,  and  lights  up  the  enduring  flame  of  patriotism. 

What  has  been  already  said  rather  presupposes  than  insists  upon 
the  importance  of  a  full  possession  of  the  general  literature  of 
ancient  and  modern  times.  It  is  this  classical  learning  alone,  which 
can  impart  a  solid  and  lasting  polish  to  the  mind,  and  give  to  dic- 
tion that  subtile  elegance  and  grace,  which  color  the  thoughts  with 
almost  transparent  hues.  It  should  be  studied,  not  merely  in  its 
grave  disquisitions,  but  in  its  glorious  fictions,  and  in  those  graphical 
displays  of  the  human  heart,  in  the  midst  of  which  we  wander,  as 
in  the  presence  of  familiar,  but  disembodied  spirits. 

It  is  by  such  studies,  and  such  accomplishments,  that  the  means 
are  to  be  prepared  for  excellence  in  the  highest  order  of  the  pro- 
fession. The  student,  whose  ambition  has  measured  them,  if  he 
can  but  add  to  them  the  power  of  eloquence,  (that  gift,  which  owes 
so  much  to  nature,  and  so  much  to  art,)  may  indeed  aspire  to  be  a 
perfect  lawyer.  It  cannot  be  denied,  indeed,  that  there  have  been 
great  lawyers,  who  were  not  orators  ;  as  there  have  been  great 
orators,  who  were  not  lawyers.  But  it  must  be  admitted  at  the 
same  time,  that,  when  both  characters  are  united  in  the  same  person, 
human  genius  has  approached  as  near  perfection,  as  it  may.  They 
are  kindred  arts,  and  flourish  best  in  the  neighbourhood  of  each 
other.* 

The  eloquence  of  the  bar  is  far  more  various  and  difficult  than 
that,  which  is  required  in  the  pulpit,  in  the  legislative  hall,  or  in 
popular  assemblies.  It  occasionally  embraces  all,  that  belongs  to 
each  of  these  places,  and  it  has,  besides,  many  varieties  of  its  own. 
In  its  general  character  it  may  be  said  to  be  grave,  deliberative,  and 
earnest,  allowing  little  indulgence  to  fancy,  and  less  to  rhetoric. 
But,  as  it  must  necessarily  change  its  tone,  according  to  its  subject, 
and  the  tribunal,  to  which  it  is  addressed,  whether  the  court  or  the 
jury,  there  is  ample  scope  for  the  exercise  of  every  sort  of  talent, 
and  sometimes  even  for  dramatic  effect.  On  some  occasions  it 
throws  aside  all  the  little  plays  of  phrase,  the  vivid  touches  of  the 
pencil,  and  the  pomp  and  parade  of  diction.  It  is  plain,  direct, 
and  authoritative.  Its  object  is  to  convince  the  understanding,  and 
captivate  the  judgment,  by  the  strength  and  breadth  of  its  reasoning. 


*  "  Praeclaras  duas  artes,"  says  Cicero,  "  atque  inter  se  pares,  et  ejusdeni  soeias 
dignitatis."     Cic.  de  Oratore,  Lib.  i.  §  55. 


462  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

Its  power  is  in  the  thought,  and  not  in  the  expression  ;  in  the  vigor 
of  the  blow  from  the  hand  of  a  giant ;  in  the  weight  of  the  argu- 
ment, which  crushes,  in  its  fall,  what  it  has  not  levelled  in  its  pro- 
gress. At  other  times  it  is  lull  of  calm  dignity  and  persuasiveness. 
It  speaks  with  somewhat  of  the  majesty  of  the  law  itself,  in  strains 
of  deep,  oracular  import.  It  unfolds  its  results  with  an  almost 
unconscious  elegance,  and  its  thoughts  flash  like  the  sparkles  of  the 
diamond.  At  other  times  it  is  earnest,  impassioned,  and  electrify- 
ing;  awing  by  its  bold  appeals,  or  blinding  by  its  fiery  zeal.  At 
other  times  it  is  searching,  and  acute,  and  rigorous;  now  brilliant 
in  point,  now  gay  in  allusion,  now  winning  in  insinuation.  At  other 
times  it  addresses  the  very  souls  of  men  in  the  most  touching  and 
pathetic  admonitions.  It  then  mingles  with  the  close  logic  of  the 
law  those  bewitching  graces,  which  soothe  prejudice,  disarm  resent- 
ment, or  fix  attention.  It  utters  language,  as  the  occasion  demands, 
which  melts  to  pity,  or  fires  with  indignation,  or  exhorts  to  clem- 
ency. 

But,  whatever  may  be  the  variety  of  effort  demanded  of  forensic 
eloquence,  whether  to  convince,  or  captivate,  or  persuade,  or  in- 
flame, or  melt ;  still  its  main  character  must  for  ever  be  like  the 
"  grave  rebuke,"  so  finely  sketched  by  our  great  epic  poet,  "  severe 
in  youthful  beauty,"'  that  it  may  possess  an  "added  grace  invinci- 
ble." *  It  may  not  stoop  to  ribaldry,  or  vulgar  jests,  or  sickly 
sentimentality,  or  puerile  conceits.  It  forbids  declamation,  and 
efflorescence  of  style.  There  is  no  room  for  the  loquacity  of 
ignorance,  or  the  insolence  of  pride.  If  wit  be  allowable,  it  must 
be  chaste  and  polished.  The  topics  discussed  in  courts  of  justice 
are  too  grave  for  merriment,  and  too  important  for  trifling.  When 
life,  or  character,  or  fortune,  hangs  on  the  issue,  they  must  be 
vindicated  with  dignity,  as  well  as  with  force. 

But  I  forbear.  I  seem,  indeed,  when  the  recollection  of  the 
wonders  wrought  by  eloquence  comes  over  my  thoughts,  to  live 
again  in  scenes  long  since  past.  The  dead  seem  again  summoned 
to  their  places  in  the  halls  of  justice,  and  to  utter  forth  voices  of  an 
unearthly  and  celestial  harmony.  The  shades  of  Ames,  and  Dex- 
ter, and  Pinkney,  and  Emmett  pass  and  repass,  not  hush  as  the 
foot  of  night,  but  in  all  the  splendor  of  their  fame,  fresh  with  the 
flush  of  recent  victory.  1  may  not  even  allude  to  the  living. 
Long,  long  may  they  enjoy  the  privilege  of  being  nameless  here, 
whose  names  are  every  where  else  upon  the  lips  of  praise. 


Paradise  Lost,  Book  iv.  line  844. 


INAUGURAL  DISCOURSE.  463 

Enough  has  been  said,  perhaps  more  than  enough,  to  satisfy  the 
aspirant  after  juridical  honors,  that  the  path  is  arduous,  and  requires 
the  vigor  of  a  long  and  active  life.  Let  him  not,  however,  look 
back  in  despondency  upon  a  survey  of  the  labor.  The  triumph, 
if  achieved,  is  worth  the  sacrifice.  If  not  achieved,  still  he  will 
have  risen  by  the  attempt,  and  will  sustain  a  nobler  rank  in  the 
profession.  If  he  may  not  rival  the  sagacity  of  1  lardwieke,  the 
rich  and  lucid  learning  of  Mansfield,  the  marvellous  judicial  elo- 
quence of  Stowell,  the  close  judgment  of  Parsons,  the  comprehen- 
sive reasoning  of  Marshall,  and  the  choice  attainments  of  Kent;  — 
yet  he  will,  by  the  contemplation  and  study  of  such  models,  exalt 
his  own  sense  of  the  dignity  of  the  profession,  and  invigorate  his 
own  intellectual  powers.  He  will  learn,  that  there  is  a  generous 
rivalry  at  the  bar  ;  and  that  every  one  there  has  his  proper  station 
and  fame  assigned  to  him  ;  and  that,  though  one  star  diftereth  from 
another  in  glory,  the  light  of  each  may  yet  be  distinctly  traced,  as 
it  moves  on,  until  it  is  lost  in  that  common  distance,  which  buries 
all  in  a  common  darkness. 

Having  spoken  thus  much  upon  the  dignity,  the  qualifications, 
and  the  duties  of  the  profession,  I  trust  it  will  not  be  supposed, 
that  we  have  the  rashness  to  indulge  the  belief,  that  the  Law  Institu- 
tion here,  under  the  guidance  of  its  present  Professors,  can  fill  up 
the  outline,  which  has  thus  been  traced.  My  learned  brother  will, 
indeed,  bring  to  the  task  of  instruction,  the  ardor,  the  attainments, 
and  the  experience,  which  elsewhere  have  given  him  such  an  elevated 
reputation.  Little,  indeed,  of  what  has  been  sketched  out  in  this 
discourse,  can  be  attained  by  any  academical  instruction  during  the 
usual  period  assigned  for  the  preparatory  studies  for  the  bar.  And 
of  that  little,  we  have  not  the  presumption  to  believe,  that  our 
method  or  efforts  can  reach  even  our  own  wishes  and  opinions. 
What  we  propose  is  no  more  than  plain,  direct,  familiar  instruction ; 
something  to  assist  the  student  in  the  first  steps  of  his  studies  ; 
something  to  cheer  him  in  his  progress ;  something  to  disencumber 
him  of  difficulties  by  the  wayside  ;  and  something  to  awaken  a 
sincere  ambition  for  professional  excellence. 

For  myself,  I  am  but  too  conscious,  how  little  I  can  bring  to  the 
task,  worthy  of  the  occasion.  The  perpetual  round  of  judicial 
duties,  full  of  anxious  thoughts  and  anxious  vigils,  might,  even  at 
an  earlier  period  of  my  life,  have  repressed  the  elasticity  of  hope. 
But  in  entering  upon  new  duties  at  the  present  time,  1  confess 
myself  more  fearful  of  failure  than  ambitious  of  distinction.     I  may 


464  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

not  say,  with  the  enviable  self-satisfaction  of  an  eminent  judge,  now 
reposing  in  leisure  sustained  with  dignity,  that  "  Long  absence  from 
the  bar,  the  consequent  want  of  practice,  age,  the  enjoyment  of 
repose,  and  the  indolence,  which  that  repose  often  produces,  have 
increased  my  unwillingness  to  undertake  a  work  of  labor."*  But 
1  may  say,  in  the  language  of  a  kindred  mind  to  his,  that,  "  After 
a  certain  age  and  portion  of  experience,  the  sense  of  duty  becomes 
a  stronger  principle  of  action  than  the  love  of  reputation."  f  I 
shall  be  content,  therefore,  if,  able  to  meet  the  duties  of  the  office, 
I  shall  not  wholly  disappoint  the  expectations  of  the  founder,  by 
whose  kind  solicitude  I  have  been  advanced  to  this  chair.  Indeed, 
I  may  say,  that  but  from  a  desire  to  justify  his  early  friendship,  (as 
welcome,  as  it  was  then  unexpected.)  and  to  express  my  own  sense 
of  his  liberal  donation,  I  should  have  declined  a  post,  wh  ch  others 
might  fill  with  more  undivided  attention,  though  not,  perhaps,  with 
more  sincere  zeal.  Under  such  circumstances,  1  hope,  that  I  may 
be  permitted  to  occupy  a  few  moments  more,  in  expounding  the 
objects  of  this  professorship,  and  thus  demonstrate  the  wisdom  and 
munificence  of  the  founder. 

The  duties  assigned  to  the  Dane  Professorship  are,  in  the  first 
instance,  to  deliver  lectures  upon  the  Law  of  Nature,  the  Law  of 
Nations,  Maritime  and  Commercial  Law,  Equity  Law,  and,  lastly, 
the  Constitutional  Law  of  the  United  States.  No  reflecting  man 
can  hesitate  to  admit  the  importance  of  these  branches  of  jurispru- 
dence, and  their  intimate  connexion  with  the  best  interests  of 
civilized  society.  To  comment  on  either  of  them  fully  and 
worthily  might  well  employ  the  diligence  of  a  long  life,  without 
exhaustion  or  repetition.'  A  course  of  lectures,  therefore,  which 
embraces  them  all,  must  necessarily  treat  them  in  a  brief,  summary, 
and  imperfect  manner.  It  must  suggest  matter  for  inquiry,  rather 
than  expound  principles  with  copiousness.  It  must  excite,  rather 
than  satisfy,  curiosity.  It  must  illustrate  by  examples,  rather  than 
exhaust  by  analysis.  It  must  display  the  foundations,  rather  than 
the  size  or  exact  proportions,  of  the  edifice.  It  must,  if  I  may 
venture  upon  such  a  metaphor,  conduct  the  inquirer  to  the  vestibule 
of  the  temple  of  jurisprudence  ;  and  leave  to  his  future  curiosity 
the  survey  of  its  magnificent  halls,  its  decorated  columns,  its  splen- 
did porticos,  its  harmonized  orders,  its  massive  walls,  its  varied 
crypts,  its  lofty   domes,  its  "ever-during  gates,   on   golden  hinges 

IIIO\  ill',." 

*  Lord  Redesdale.  1  Chancellor  Kent. 


INAUGURAL  DISCOURSE.  465 

And  first,  the  Law  of  Nature.  This  lies  at  the  foundation  of  all 
other  laws,  and  constitutes  the  first  step  in  the  science  of  jurispru- 
dence. The  law  of  nature  is  nothing  more  than  those  rules,  which 
human  reason  deduces  from  the  various  relations  of  man,  to  form 
his  character,  and  regulate  his  conduct,  and  thereby  ensure  his 
permanent  happiness.  It  embraces  a  survey  of  his  duties  to  God, 
his  duties  to  himself,  and  his  duties  to  his  fellow-men  ;  deducing 
from  those  duties  a  corresponding  obligation.  It  considers  man, 
not  merely  in  his  private  relations  as  a  social  being,  but  as  a  subject 
and  magistrate,  called  upon  to  frame,  administer,  and  obey  laws  ;  and 
owing  allegiance  to  his  country  and  government;  and  bound,  from 
the  protection  he  derives  from  the  institutions  of  society,  to  uphold 
and  protect  them  in  return.  It  is,  therefore,  in  the  largest  sense, 
the  philosophy  of  morals  ;  what  Justinian  has  defined  justice  to  be  : 
"  Constans  el  perpetua  voluntas  jus  suura  cuique  tribuendi;"  or 
what  may  be  denominated  national  jurisprudence,  as  expounded  by 
the  same  authority  :  "  Divinarnm  at  pie  humanarum  rerum  notitia, 
justi  atque  injusti  scientia."  With  us,  indeed,  who  form  a  part  of 
the  Christian  community  of  nations,  the  law  of  nature  has  a  higher 
sanction,  as  it  stands  supported  and  illustrated  by  revelation. 
Christianity,  while  with  many  minds  it  acquires  authority  from  its 
coincidences  with  the  law  of  nature,  as  deduced  from  reason,  has 
added  strength  and  dignity  to  the  latter  by  its  positive  declarations. 
It  goes  farther.  It  unfolds  our  duties  with  far  more  clearness  and 
perfection  than  had  been  known  before  its  promulgation  ;  and  has 
given  a  commanding  force  to  those  of  imperfect  obligation.  It 
relieves  the  mind  from  many  harassing  doubts  and  disquietudes  ; 
and  imparts  a  blessed  influence  to  the  peaceful  and  benevolent 
virtues,  to  mercy,  charity,  humility,  and  gratitude.  It  seems  to 
concentrate  all  morality  in  the  simple  precept  of  love  to  God  and 
love  to  man.  It  points  out  the  original  equality  of  all  mankind  in 
the  eyes  of  the  Supreme  Being,  and  brings  down  the  monarch  to 
the  level  of  his  subjects.  It  thus  endeavours  to  check  the  arro- 
gance of  power,  and  the  oppression  of  prerogative  ;  and  becomes 
the  teacher,  as  well  as  the  advocate,  of  rational  liberty.  Above  all, 
by  unfolding,  in  a  more  authoritative  manner,  the  doctrine  of  the 
immortality  of  the  soul,  it  connects  all  the  motives  and  actions  of 
man  in  his  present  state  with  his  future  interminable  destiny.  It 
thus  exhorts  him  to  the  practice  of  virtue,  by  all,  that  can  awaken 
hope,  or  secure  happiness.  It  deters  him  from  crimes,  by  all,  that 
can  operate  upon  his  fears,  his  sensibility,  or  his  conscience.  It 
59 


466  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

teaches  him,  that  the  present  life  is  hut  the  dawn  of  being ;  and 
that  in  the  endless  progress  of  things  the  slightest  movement  here 
may  communicate  an  impulse,  which  may  be  felt  through  eternity. 
Thus,  Christianity  becomes,  not  merely  an  auxiliary,  but  a  guide, 
to  the  law  of  nature  ;  establishing  its  conclusions,  removing  its 
doubts,  and  elevating  its  precepts. 

In  this  manner  it  is,  that  the  law  of  nature  involves  a  considera- 
tion of  the  nature,  faculties,  and  responsibilities  of  man.  From  his 
intellectual  powers,  and  the  freedom  of  his  will,  it  deduces  his  moral 
perceptions  and  accountability.  From  his  love  of  happiness,  as  the 
end  and  aim  of  his  being,  it  deduces  the  duty  of  preserving  that 
happiness.  From  his  dependence  upon  the  Supreme  Being,  whose 
will  has  indissolubly  connected  virtue  with  happiness,  it  deduces 
the  primary  duty  of  obedience  to  that  will.  From  these  simple 
elements,  it  proceeds  to  consider  him  in  the  various  relations  of 
life,  in  which  he  may  be  placed,  and  ascertains  in  each  his  obliga- 
tions and  duties.  It  considers  him  as  a  solitary  being,  as  a  member 
of  a  family,  as  a  parent,  and  lastly,  as  a  member  of  the  common- 
wealth. 

The  consideration  of  this  last  relation  introduces  us  at  once  to 
the  most  interesting  and  important  topics :  the  nature,  objects,  and 
end  of  government ;  the  institution  of  marriage  ;  the  origin  of  the 
rights  of  property;  the  nature  and  limits  of  social  liberty;  the 
structure  of  civil  and  political  rights  ;  the  authority  and  policy  of 
laws  ;  and,  indeed,  all  those  institutions,  which  form  the  defence  and 
the  ornament  of  civilized  society.* 

Upon  many  of  these  topies,  of  which  a  very  imperfect  sketch 
can  here  be  given,  I  shall  speak  with  much  brevity  and  reserve, 
for  two  reasons.  In  the  first  place,  in  the  course  of  the  academical 
instruction  in  this  University  already  provided  for,  the  subjects  of 
ethics,  natural  law,  and  theology,  are  assigned  to  other  professors. 
In  the  next  place,  in  the  elementary  education,  every  where  passed 
through,  before  entering  upon  juridical  studies,  they  are  usually 
taught  with  sufficient  fulness  and  accuracy. 

In  the  second  place,  the  Law  of  JNations.  By  this  we  are  to 
understand,  not  merely  that  portion  of  public  law,  which  is  generally 
recognised  among  nations  (as   seems   to   have   been  the  prevailing 


*  .Mr.  Hoffman's  Legal  Outlines,  of  which  the  first  volume  only  is  yet  pub- 
lished, contains  some  very  interesting  ami  valuable  disquisitions  upon  several  of 
tin'  topics  belonging  to  this  branch  of  law.  1  trust  the  learned  author  will  soon 
favor  the  public  with  the  residue  of  his  work. 


INAUGURAL    DISCOURSE.  467 

sense  of  the  phrase  in  the  Roman  code)  ;  hut  that  portion  of  puhlic 
law,  which  regulates  the  intercourse,  adjusts  the  rights,  and  forms 
the  basis,  of  the  commercial  and  political  relations  of  states  with 
each  other.  Perhaps  the  most  appropriate  name  would  be,  Inter- 
national Law,  jits  inter  gentes.  It  has  in  this  view  been  very 
correctly  subdivided  into  three  sorts:  first,  the  natural  or  necessary 
law  of  nations,  in  which  the  principles  of  natural  justice  are  ap- 
plied to  the  intercourse  between  states;  secondly,  the  customary 
law  of  nations,  which  embodies  those  usages,  which  the  continued 
habit  of  nations  has  sanctioned  for  their  mutual  interest  and  con- 
venience ;  and,  thirdly,  the  conventional  or  diplomatic  law  of 
nations,  which  embraces  positive  compacts  by  treaties  and  conven- 
tions between  nations,  and  derives  its  sole  obligation  from  the  same 
sources  as  other  contracts.  Under  this  last  head  many  regulations 
will  now  be  found,  which  at  first  resulted  from  custom,  or  a  general 
sense  of  justice,  and  are  now  made  of  positive  obligation,  for  the 
purpose  of  preventing  national  disputes  and  collisions. 

Upon  the  general  theory  of  the  law  of  nations,  much  has  been 
written  by  authors  of  great  ability  and  celebrity.  At  the  head  of 
the  list  stands  that  most  extraordinary  man,  Grotius,  whose  treatise, 
de  Jure  Belli  et  Pads,  was  the  first  great  effort  in  modern  times  to 
reduce  into  any  order  the  principles  belonging  to  this  branch  of 
jurisprudence,  by  deducing  them  from  the  history  and  practice  of 
nations,  and  the  incidental  opinions  of  philosophers,  orators,  and 
poets.  His  eulogy  has  been  already  pronounced  in  terms  of  high 
commendation,  but  so  just  and  so  true,  that  it  were  vain  to  follow, 
or  add  to  his  praise.*  Puffendorf,  in  a  dry,  didactic  manner,  has 
drawn  out,  in  the  language  of  the  times,  much  to  strengthen  the 
conclusions  of  his  master  upon  natural  law ;  and  the  sagacity  of 
Barbeyrac,  in  his  luminous  Commentaries,  has  cleared  away  many 
obscurities,  and  vindicated  many  positions.  Wolfius,  who  is  better 
known  among  us  in  his  elegant  abridger,  Vattel,  has  more  elabo- 
rately discussed  the  theory,  with  the  improved  lights  of  modern 
days.  And  Ward,  in  his  unpretending,  but  exact,  Inquiry  into  the 
Foundation  and  History  of  the  Law  of  Nations  in  Europe,  from  the 
time  of  the  Greeks  and  Romans  to  the  age  of  Grotius,  has  afforded 
ample  materials  for  illustration  and  profound  reflection.  Bynker- 
shoeck  is  a  writer  of  a  very  different  cast ;  and  in  a  clear,  bold,  and 
uncompromising    manner    lays    down    his    principles,    as    practical 

*  Sir  James  Mackintosh,  in  his  Introductory  Discourse  on  the  Law  of  Nations, 


468  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

results,  with  a  brevity  and  vigor,  which  give  them  almost  the 
authority  of  a  text-book.  He  is  not,  however,  a  mere  apologist, 
or  collector  of  usages ;  but  he  insists,  with  an  animated  vehemence, 
that  reason  is  the  very  soul  of  the  law  of  nations.  "  Ratio  ipsa, 
inquam,  ratio  juris  gentium  est  anima."  * 

But  I  know  not,  if  there  be  in  existence  any  treatise  on  this 
subject,  which,  in  point  of  fulness  and  accuracy  of  principles,  or 
copiousness  of  detail,  is  adapted  to  the  exigencies  of  modern 
society,  or  is  calculated  in  any  moderate  degree  to  satisfy  the  ex- 
pectations of  a  scholar  or  a  publicist.  There  is  yet  living,  a  man,f 
whose  character,  as  a  philosophical  moralist,  enlightened  statesman, 
and  liberal  jurist,  commands  universal  respect,  who  taught  us  in  his 
early  performances,  that  to  his  genius  we  might  thereafter  owe  such 
an  invaluable  donation.  But  the  lapse  of  thirty  years,  and  the  se- 
ductive influence  of  other  studies,  lead  us  now  to  fear,  that  our  hopes 
will  end  in  disappointment.  Such  a  treatise  should  embrace,  among 
other  things,  a  general  view  of  the  sovereignty,  equality,  and  inde- 
pendence of  nations  ;  the  rights  of  public  domain,  and  territorial 
jurisdiction  in  rivers,  bays,  lakes,  and  streams,  and  the  ocean  ;  the 
intercourse  of  nations  in  times  of  peace  in  respect  to  commerce 
and  navigation  ;  the  immunities,  and  liabilities,  and  privileges  of 
foreigners  ;  the  rights  and  duties  of  ambassadors  and  other  minis- 
ters ;  the  grounds  of  just  war;  the  rights  and  duties  ol'  belligerents 
and  neutrals,  and  the  limits  of  just  hostilities;  the  rights  of  con- 
quest ;  the  nature  of  piracy ;  the  nature  and  effect  of  alliances, 
armistices,  passports,  and  safe-conducts;  and  the  negotiation,  inter- 
pretation, and  obligation  of  treaties  of  peace  and  other  treaties. 

My  object  will  be,  in  the  discussion  of  these  topics,  to  expound  the 
general  theory  with  as  much  conciseness  as  the  nature  of  the  case 
will  admit;  and  to  devote  my  principal  labor  to  the  development  of 
those  practical  results,  which  are  of  perpetual  application  in  the 
common  business  of  life,  and  regulate  the  daily  concerns  of  indi- 
viduals and  nations,  in  peace  and  in  war.  For  this  purpose,  I  shall 
adventure  far  more  than  has  been  usual  with  publicists,  into  an 
examination  of   those   general   principles  of  jurisprudence,   which 

*  Bynker.  Quest.  Pub.  Jur.  ch.  2.  Mr.  Du  Ponceau's  Translation  of  this  work 
is  a  most  valuable  present  to  the  profession.  Indeed,  when  one  considers  the 
liberal  and  acute  spirit,  which  pervades  all  the  juridical  publications  of  Mr.  Du 
Ponceau,  it  is  matter  of  universal  regret,  that  he  has  not  exclusively  devoted  his 
life  to  the  exposition  of  law,  and  particularly  of  the  civil  law. 

t   Sir  James  Mackintosh.     [He  is  since  dead.] 


INAUGURAL    DISCOURSE.  469 

affect,  the  contracts,  govern  the  titles,  and  limit  the  remedies  of  the 
subjects  of  independent  powers,  who  acquire  rights,  or  contract 
obligations,  or  succeed  to  property,  or  are  in  any  measure"  subjected 
to  the  municipal  law  in  a  foreign  country.  This  will  include  a  variety 
of  delicate  and  interesting  topics  belonging  to  the  operation  of 
foreign  jurisprudence,  or,  as  it  is  sometimes  called,  the  lex  fori  ct 
lex  loci.  Among  these  are  the  law  of  foreign  domicil  and  expa- 
triation ;  of  foreign  marriages,  divorces,  and  crimes ;  of  foreign 
testaments,  and  successions  ab  intestato ;  of  foreign  grants  and 
agreements  ;  of  foreign  prescriptions,  limitations,  presumptions, 
discharges,  and  judgments;  of  foreign  asylum  to  deserters  and 
fugitives;  and,  as  incidental,  the  nature  and  extent  of  the  jurisdic- 
tion, exercised  by  courts  of  law  in  enforcing  rights  between  foreign- 
ers, or  giving  effect  to  the  municipal  prohibitions  of  foreign  countries. 
I  shall  also  adventure  upon  an  ample  discussion  of  the  law  of  prize, 
including  therein  the  law  of  captures,  and  recaptures,  and  reprisal, 
the  law  of  postliminy,  and  the  law  of  contraband,  and  blockade, 
and  illegal  trade.  And,  as  a  fit  conclusion  of  such  a  discussion,  I 
shall  give  a  summary  view  of  the  practice  and  jurisprudence  of 
those  tribunals,  emphatically  called  courts  of  the  law  of  nations, 
which  in  every  country  are  ordained  to  administer  this  important 
branch  of  public  law.  In  England  and  America,  this  jurisdiction 
is  vested  in  the  courts  of  admiralty.  In  this  part  of  my  labors  I 
shall  freelv  use  the  materials,  which  have  been  furnished  by  those 
distinguished  civilians,  who  have  from  time  to  time  adorned  the 
English  and  American  courts  of  admiralty.  And,  above  all.  I 
shall  endeavour  to  avail  myself  of  those  masterly  judgments,  full 
of  wisdom,  and  learning,  and  captivating  eloquence,  which  have 
been  pronounced  within  the  last  thirty  years  by  a  man,*  to  whom, 
in  my  deliberate  opinion,  the  world  is  more  indebted  for  a  practical 
exposition  of  the  law  of  nations  upon  the  eternal  principles  of 
justice  and  reason,  than  to  all  the  jurists  of  all  former  ages. 

In  the  next  place,  Equity  Jurisprudence.  This  is  a  very  com- 
prehensive head  of  our  municipal  law,  and  in  its  actual  administra- 
tion probably  embraces  as  great  a  variety  and  extent  of  learning, 
as  the  aggregate  of  all  those,  which  now  fall  within  the  jurisdiction 
of  the  courts  of  common  law,  in  the  strict  sense  of  the  terms. 
The  jurisdiction  in  equity  is  sometimes  concurrent  with  courts  of 
common  law,  as  in  matters  of  account,   partition,  and  dower;  and 


*  Lord  StowelJ  (late  Sir  William  Scott). 


470  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

sometimes  it  is  exclusive  and  paramount.  Its  exclusive  jurisdiction 
covers  an  immense  mass  of  doctrines,  relative  to  truths,  frauds, 
mistakes,  and  accidents,  and  other  cases,  which  the  remedial  justice 
of  the  common  law  courts  cannot  reach.  It  is  a  common,  but 
groundless  notion,  that  equity  consists  in  the  administration  of  a 
sort  of  discretionary  justice  ;  and  is  not,  like  the  common  law,  built 
upon  exact  principles  and  settled  rules  ;  that  it  is  a  transcendental 
power,  acting  above  the  law,  and  superseding  and  annulling  its 
operations,  and  resting  in  an  undefined  and  arbitrary  judgment,  at 
best  the  arbitrium  boni  viri,  rather  than  boni  jurisconsulii.  There 
is,  therefore,  among  those,  who  have  not  cultivated  it  as  a  science, 
a  spectral  dread  of  it,  as  if  some  unquiet  spirit  walked  abroad  to 
disturb  the  repose  of  titles,  and  revive  forgotten  and  dormant  claims. 
It  is  strange,  that  such  a  delusion  should  find  countenance,  even 
within  the  pale  of  the  profession  itself.  There  is  not,  at  the  present 
moment,  a  single  department  of  the  law,  which  is  more  completely 
fenced  in  by  principle,  or  that  is  better  limited  by  considerations  of 
public  convenience,  both  in  doctrine  and  discipline,  than  equity. 
It  is  an  intricate,  but  an  exquisitely  finished  system,  wrought  up 
with  infinite  care,  and  almost  uniformly  rational  and  just  in  its  con- 
clusions. Indeed,  that  portion  of  the  common  law,  which  is  now 
most  admired  for  its  sound  policy,  derives  its  principal  attraction 
from  its  being  founded  in  a  large  and  liberal  equity,  and  therefore 
is  assumed  as  a  rule  equally  at  Paris  and  at  London,  at  Rome  and 
at  Washington.  If  it  would  not  occupy  too  much  space  in  an 
introductory  discourse,  I  might  vindicate  these  assertions  against 
every  objection.     But  this  is  not  the  time,  or  the  occasion. 

In  the  next  place,  Commercial  and  Maritime  Law.  By  com- 
mercial law,  we  are  accustomed  to  understand  those  branches  of 
jurisprudence,  which  regulate  the  operations  of  trade  at  home  and 
abroad ;  and  by  maritime  law,  those,  which  concern  navigation, 
shipments,  commerce,  and  other  transactions  on  the  sea.  In  truth, 
they  are  perpetually  running  into  each  other,  as  the  streams  of 
many  rivers  flow  into  the  ocean,  and  form  a  part  of  its  mass  of 
waters,  and  are  almost  incapable  of  an  absolute  separation.  There 
can  be  little  need  to  descant  upon  the  value  and  importance  of  this 
part  of  our  jurisprudence.  It  is  the  golden  chain,  which  connects 
the  nations  of  the  earth,  and  binds  them  together  in  the  closest 
union.  It  comes  home  to  every  man's  business  and  bosom  ;  and  is 
as  captivating  by  the  philosophy  of  its  doctrines,  as  it  is  commen- 
dable for  its  sound  morals,   its  flexible  adaptations,  and  its  enlight- 


INAUGURAL    DISCOURSE.  471 

ened  policy.  Much  of  its  excellence,  it  must  be  admitted,  is  the 
growth  of  modern  times.  Its  history  may  be  easily  traced  back  to 
the  classical  shores  of  the  Mediterranean,  where  maritime  enter- 
prise, upon  the  revival  of  letters,  spread  itself  with  wonderful 
rapidity  and  success.  It  succeeded  the  age  of  chivalry  ;  and,  by 
blending  the  common  interests  of  nations,  it  softened  the  manners, 
and  subdued  the  barbarous  spiiit  of  rivals  and  adversaries.  The 
customs  of  trade  and  navigation  soon  acquired  the  authority  of  law; 
and,  assisted  by  the  persuasive  equity  of  the  Roman  law  of  contract, 
(then  much  studied  and  admired,  and  still  entitled  to  profound 
admiration,)  it  silently  pervaded  all  Europe,  from  the  farther  Cala- 
bria to  the  frozen  Baltic.  The  Consolato  del  Mare,  which  still 
instructs  us  by  the  wisdom  of  its  precepts,  is  but  a  collection  of 
the  rules  and  maxims  of  this  voluntary  international  code.  The 
celebrated  Ordinance  of  Louis  the  Fourteenth  (which  will  be 
gratefully  remembered,  when  his  ambitious  projects  are  lost  in  the 
dimness  of  tradition)  is  little  more  than  a  text  gathered  from  the 
civilians,  and  the  customs  of  commerce,  by  the  genius  of  a  minister, 
whose  life  seemed  devoted  to  the  interests  of  posterity.  England 
was  almost  the  last  to  receive  into  her  bosom  this  beautiful  effort 
of  human  reason.  Little  more  than  a  century  has  elapsed,  since 
she  could  scarcely  be  said  to  possess  any  commercial  jurisprudence. 
The  old  common  lawyers  repelled  it  with  a  sullen  inhospitality  and 
indifference.  And,  though  it  cannot  be  doubted,  that  the  spirit  of 
commerce  would,  first  or  last,  have  forced  it  into  the  courts  of 
England,  and  compelled  them  to  protect  the  interests,  which  the 
enterprise  of  her  subjects  had  created  ;  it  may  be  reasonably  ques- 
tioned, whether,  but  for  the  extraordinary  genius  of  Lord  Mansfield, 
she  would  not  have  been,  at  this  very  moment,  a  century  behind 
continental  Europe  in  adopting  its  doctrines.  He  was  in  a  great 
measure  the  author  of  the  law  of  insurance  ;  and  he  gave  to  the 
other  branches  of  commercial  law  a  clearness  and  certainty,  which 
surprise  us  more  and  more,  as  we  examine  and  study  his  decisions. 
That  he  borrowed  much  from  foreign  jurisprudence  is  admitted  ; 
but  he  more  than  repaid  every  obligation  to  these  sources.  He 
naturalized  the  principles  of  commercial  law,  when  he  transplanted 
them  into  the  soil  of  England,  and  they  have  flourished  with  new 
vigor  in  her  genial  climate.  It  is  her  just  boast,  that,  having  been 
once  a  tributary,  she  has  now  in  turn  laid  the  whole  continent 
under  contribution.  Her  commercial  law  has  attained  a  perfection, 
order,  and  glory,  which  command  the  reverence  of  the  whole  world. 


472  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

It  is  almost  universally  followed  and  obeyed  ;  not,  indeed,  as  of 
positive  institution  ;  but  as  wisdom,  practical  wisdom,  acting  upon 
the  results  of  a  large  experience,  in  a  government,  where  opinion 
is  free,  and  justice  is  administered  without  favor  and  without  re- 
proach. 

A  treatise  upon  this  branch  of  law  must  necessarily  comprehend 
a  wide  range  of  subjects.  It  must  discuss,  among  other  things, 
the  law  of  principals  and  agents,  brokers,  factors,  and  consignees; 
of  partnerships,  and  other  joint  ownerships;  of  negotiable  instru- 
ments, such  as  bills  of  exchange,  promissory  notes,  checks,  and 
bills  of  lading  ;  of  contracts  of  bailment,  shipments,  and  affreight- 
ment; and,  as  incidents,  of  charter-parties,  freight,  demurrage,  and 
stoppage  in  transitu;  of  navigation  and  shipping,  and,  as  incidents, 
the  rights  and  duties  of  owners,  masters,  and  mariners;  and  of 
insurance,  bottomry,  respondentia,  salvage,  and  general  average. 
Mv  object  will  be  to  deal  as  fully  with  these  topics,  as  may  consist 
with  the  limits,  by  which  every  system  of  lectures  must  be  circum- 
scribed. 

In  the  last  place,  the  Constitutional  Law  of  the  United  States. 
In  the  correct  exposition  of  this  subject  there  is  not  a  single 
American  citizen,  who  has  not  deep  stake  and  permanent  interest. 
"  In  questions  merely  political,"  says  Junius,  "  an  honest  man  may 
stand  neuter.  But  the  laws  and  constitution  are  the  general 
property  of  the  subject.  Not  to  defend,  is  to  relinquish ;  and 
who  is  so  senseless  as  to  renounce  his  share  in  a  common  benefit, 
unless  he  hopes  to  profit  by  a  new  division  of  the  spoil?"*  The 
existence  of  the  union  of  these  States  does,  (as  I  think,)  mainly 
depend  upon  a  just  administration  of  the  powers  and  duties  of  the 
national  government;  upon  the  preservation  of  that  nice,  but  ever 
changing  influence,  which  balances  the  state  and  general  govern- 
ments, and  tends,  or  should  always  tend,  to  bring  them  into  a  due 
equilibrium.  There  is  no  safety  to  our  civil,  religious,  or  political 
rights,  except  in  this  union.  And  it  is  scarcely  too  much  to  affirm, 
that  the  cause  of  liberty  throughout  the  world  is  in  no  small  meas- 
ure suspended  upon  this  great  experiment  of  self-government  by 
the  people.  I  shall  endeavour,  in  my  commentaries  upon  this 
important  branch  of  political  law,  to  discuss  it  with  all  the  delicacy 
and  reserve  becoming  my  official  station,  and  with  all  the  sobriety 
appertaining  to  the  fundamental  law  of  organization  of  a  free  gov- 


*  Letter  41,  to  Lord  Mansfield. 


INAUGURAL    DISCOURSE.  473 

eminent.  My  object  will  be  to  unfold  its  divisions,  and  explain  its 
principles,  as  far  as  practicable,  by  the  lights  of  those  great  minds, 
which  fostered  into  being,  and  nourished  its  infancy.  I  shall  deal 
1-itUe  wkh  speculative  discussions,  and  still  less  with  my  own  per- 
sonal opinions.  But  I  .shall  rely  with  undoubting  confidence  upon 
the  early  commentaries  of  its  Cramers,  upon  the  legislative  recogni- 
tions of  authority  and  duty,  and  the  judicial  decisions  of  the  highest 
courts,  as  safe  guides  for  interpretation.  Above  all,  I  shall  freely 
use  the  doctrines  of  the  admirable  production  *  of  Hamilton, 
Madison,  and  Jay,  (patriots  as  pure,  and  statesmen  as  wise  as  any, 
who  have  graced  our  country,)  which  has  already  acquired  the 
weight  of  an  authority  throughout  America.  If  by  such  means  I 
shall  contribute  to  fix  in  the  minds  of  American  youth  a  more 
devout  enthusiasm  for  the  constitution  of  their  country,  a  more 
sincere  love  of  its  principles,  and  a  more  firm  determination  to 
adhere  to  its  actual  provisions  against  the  clamors  of  faction,  and 
the  restlessness  of  innovation,  my  humble  labors  will  not  be  without 
some  reward  in  the  consciousness  of  having  contributed  something 
to  the  common  weal. 

I  have  thus  sketched  a  general  outline  of  the  course  of  lectures, 
which  the  founder  of  the  Dane  Professorship  has  in  the  first  instance 
assigned  to  this  chair  for  the  encouragement  of  juridical  learning. 
Imperfect  as  this  outline  is,  it  must  strike  the  most  superficial  ob- 
server, how  rich  and  various  are  the  topics,  which  it  proposes  to 
examine  ;  how  extensive  is  the  learning,  and  how  exhausting  the 
diligence,  to  accomplish  the  design.  While  it  does  honor  to  the 
public  spirit,  and  the  sagacity,  and  the  enlightened  zeal  of  the 
founder;  while  it  testifies  his  enthusiasm  for  the  science,  in  which 
he  has  so  deservedly  attained  eminence  ;  it  at  the  same  time  ad- 
monishes us,  that  he,  who  matured  the  plan,  seems  alone  to  possess 
the  courage  and  ability  to  execute  it  with  complete  success.  In 
truth,  the  venerable  founder  has  measured  the  strength  of  others 
by  his  own  ;  and  scarcely  seems  to  have  suspected  the  difficulties 
of  the  task,  from  the  consciousness  of  his  own  power  to  subdue 
them.  The  skilful  guide  in  the  Alps  walks  with  fearless  confidence 
in  the  midst  of  dangers,  which  appall  the  traveller,  who  has  never 
made  trial  of  his  strength.  Lord  Coke,  himself  a  prodigy  of  pro- 
fessional learning,  has  somewhere  laid  down,  for  the  benefit  of 
students,  the  various  employments  for  every  day,  and  has  assigned 

*  The  Federalist. 

60 


474  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

six  hours  for  the  pursuit  of  the  law.*  Lord  Hale  has  limited  his 
exactions  to  the  same  period  ;f  and  Sir  William  Jones,  whose  early 
amhition  thought,  that  all  the  departments  of  law  might  be  mas- 
tered by  a  single  mind  in  satisfactory  commentaries,  has  not  ven- 
tured upon  a  different  assignment  of  labor. J  I  feel  justified  in 
saying,  that  for  more  than  fifty  years  our  generous  patron  has  daily 
devoted  to  his  favorite  studies  of  politics  and  jurisprudence  more 
than  double  that  number  of  hours. 

I  trust,  it  will  not  be  deemed  an  intrusion,  if  upon  this  occasion 
I  venture  to  speak  somewhat  of  the  public  services  of  this  distin- 
guished lawyer,  which  are  already  matter  of  notoriety,  and,  con- 
sidering his  age  and  character,  may  almost  be  deemed  matter  of 
history. 

It  is  now  more  than  fifty  years  since  Mr.  Dane  first  came  to  the 
bar,  and  brought  to  its  practice  his  varied  stores  of  knowledge. 
He  was  almost  immediately  engaged  in  the  duties  of  legislation  in 
this,  his  native  state  ;  and  to  him  we  are  chiefly  indebted  for  the 
first  general  revisal  of  our  Provincial  Statutes,  as  well  as  for  other 
improvements  in  our  code  of  positive  law.  At  the  distance  of 
thirty  years,  he  was  again  called  by  the  voice  of  the  legislature 
to  a  similar  duty  ;  and  to  him,  in  a  great  measure,  we  owe  the 
valuable  collection  of  our  Colonial  and  Provincial  Statutes,  which 
now  adorns  our  libraries.  In  the  intermediate  period  he  served 
many  years  in  the  Continental  Congress,  during  some  of  its  most 
difficult  operations,  and  there  maintained  a  high  reputation  for  sound 
judgment,  and  an  inflexible  adherence  to  the  best  principles  of 
political  polity.  His  advancement  to  public  life  was  always  un- 
sought for  by  himself;  and  his  retirement  from  it  has  always  been 
matter  of  public  regret.  To  him  belongs  the  glory  of  the  formation 
of  the  celebrated  Ordinance  of  1787,  which  constitutes  the  funda- 
mental law  of  the  states  northwest  of  the  Ohio.  It  is  a  monument 
of  political  wisdom,  and  sententious   skillulness  of  expression.     It 

*  Co.  Litt.  64  b. 

"  Sex  horas  sonino,  totidem  ties  legibus  aequis, 
Quatuor  orabis,  des  epulis  dims. 
Quod  superest,  ultro  saeris  largire  camcenis." 

t  Boswell's  Life  of  Johnson,  iii.  398. 

!  Teignmouth's  Life  of  Sir  William  Jones,  p.  257. 

"  Six  hours  to  law,  to  soothing  slumber  seven, 
Ten  to  the  world  allot,  and  all  to  Heaven." 

See  al;;o,  Law  of  Bailments,  pp.  122.  12:?. 


INAUGURAL    DISCOURSE. 


475 


was  adopted  unanimously  by  Congress,  according  to  his  original 
draft,  with  scarcely  the  alteration  of  a  single  word.  After  his 
retirement  from  public  life  he  devoted  himself  with  matchless 
assiduity  to  the  duties  of  the  bar;  and  gradually  arriving  at  the 
first  rank,  he  became  the  guide,  the  friend,  and  the  father  of  the 
profession  in  his  own  county.  In  the  midst  of  an  extensive  prac- 
tice, he  found  leisure  to  compile  his  Digest  and  Abridgment  of 
American  Law,  which,  in  eight  large  octavo  volumes,  comprehends 
a  general  survey  of  all  our  jurisprudence,  and  attests  the  depth  of 
his  learning,  his  unwearied  industry,  and  his  independent,  but  cau- 
tious, judgment.  It  is  now  some  years  since  he  bade  farewell  to 
the  bar,  but  not  to  his  favorite  studies.*  In  contemplating  his  pro- 
fessional character,  one  is  perpetually  reminded  of  the  fine  portrait 
of  Lord  Chief  Justice  Rolle,  drawn  by  Lord  Hale,  in  his  Preface 
to  Rolle's  Abridgment  of  the  Law,  which  has  so  close  a  resem- 
blance, that  it  seems  another,  and  the  same.  "  He  argued  fre- 
quently and  pertinently,"  says  Lord  Hale;  "his  arguments  were 
fitted  to  prove  and  evince,  not  for  ostentation;  plain,  yet  learned; 
short,  if  the  nature  of  the  business  permitted,  yet  perspicuous. 
His  words  few,  but  significant  and  weighty.  His  skill,  judgment, 
and  advice,  in  points  of  law  and  pleading,  were  sound  and  excel- 
lent.—  In  short,  he  was  a  person  of  great  learning  and  experience 
in  the  common  law,  profound  judgment,  singular  prudence,  great 
moderation,  justice,  and  integrity."  Mr.  Dane  has  nobly  dedicated 
the  whole  proceeds  of  his  great  work  to  the  establishment  of  this 
professorship  ;  and  thus  has  become  to  our  parent  University,  in  the 
highest  sense,  the  American  Viner.  I  am  but  too  sensible,  that 
here  the  parallel  must  stop  ;  and  that  to  pursue  it  farther  would 
cover  him  with  humiliation,  who  now  addresses  you.  To  the  lib- 
eral donation  of  Mr.  Viner  the  world  is  indebted  for  the  splendid 
Commentaries  of  Sir  William  Blackstone,  a  work  of  such  singular 
exactness  and  perspicacity,  of  such  finished  purity  and  propriety 
of  style,  and  of  such  varied  research,  and  learned  disquisition,  and 
constitutional  accuracy,  that,  as  a  text-book,  it  probably  stands  un- 
rivalled in  the  literature  of  any  other  language,  and  is  now  studied 
as  a  classic  in  America,  as  well  as  in  England.  Perhaps  when  we 
are  gathered  in  the  dust,  some  future  Blackstone,  nursed  and  reared 
in  this  school,  may  arise  ;   and  by  a  similar  achievement  blend  his 

*  A  supplementary  volume  (now  constituting  the  ninth)  of  his  Digest  and 
Abridgment,  was  published  by  Mr.  Dane  a  short  time  after  this  Discourse  was 
delivered,  —  which  contains  an  abstract  of  thirty  volumes  of  reports. 


476  JURIDICAL    DISCOURSES    AND    ARGUMENTS. 

own  immortality  with  the  lame  of  the  founder.  Would  to  God, 
that  it  may  be  so  !  Then  would  this  fair  seat  of  science  become 
the  pride  of  the  law,  as  it  now  is  the  pride  of  the  literature  of  our 
country. 

When  we  look  around  us,  and  consider,  how  much  has  been 
done  by  this  University  for  the  glory  and  safety  of  the  Common- 
wealth ;  when  we  recollect,  how  many  distinguished  men  have  been 
nourished  in  her  bosom,  and  warmed  by  her  bounty,  and  cheered 
by  her  praise;*  it  is  impossible  to  suppress  the  wish,  the  earnest 
wish,  that  this  last  triumph  may  yet  crown  her  matron  dignity. 
What  consolation  could  be  more  affecting  to  her  grateful  children, 
than  that  in  these  academical  shades  there  should  arise  a  temple, 
sacred  to  the  majesty  of  the  law  ;  where  our  future  orators,  and 
jurists,  and  judges,  and  statesmen,  might  mature  their  genius,  and 
deepen  their  learning,  and  purify  their  ambition  ;  where  future 
generations  may  approach,  and  read  the  wisdom  of  the  law,  as  it  is 
personified  in  the  glowing  sketch  of  Algernon  Sidney  :  "  It  is  void 
of  desire  and  fear,  lust  and  anger.  It  is  mens  sine  affectu,  written 
reason,  retaining  some  measure  of  the  divine  perfection.  It  does 
not  enjoin  that,  which  pleases  a  weak,  frail  man ;  but,  without  any 
regard  to  persons,  commands  that,  which  is  good,  and  punishes  evil 
in  all,  whether  rich  or  poor,  high  or  low.  It  is  deaf,  inexorable, 
inflexible."  f 

*  The  members  delegated  from  Massachusetts  to  serve  in  the  Revolutionary 
Congress  between  1774  and  1789,  (when  the  new  Constitution  was  adopted.)  were 
in  number  twenty-one.  Of  these,  seventeen  were  educated  in  Harvard  University. 
Their  names  are  as  follows  :  Samuel  Adams,  Thomas  dishing,  John  Hancock,  John 
Adams,  Robert  T.  Paine,  Francis  Dana,  Elbridge  Gerry,  John  Lowell,  Samuel 
Osgood,  Jonathan  Jackson,  Artemas  Ward,  George  Partridge,  Rufus  King,  James 
Lovell,  Samuel  A.  Otis,  George  Thacher,  and  Nathan  Dane.  Mr.  Dane,  at  the 
time  of  the  delivery  of  this  Discourse,  was  the  sole  survivor.  He  is  since  deceased, 
having  died  on  the  15th  of  February,  1833. 

t   Works  of  Algernon  Sidney,  sect.  15,  p.  69. 


POLITICAL    PAPERS. 


REPORT 


ON  THE  SUBJECT  OF  AN  INCREASE  OF  THE  SALARIES  OF  THE  JUSTICES 
OF  THE  SUPREME  COURT  OF  MASSACHUSETTS,  MADE  TO  THE  HOUSE  OF 
REPRESENTATIVES   OF   THAT  STATE,   IN  JUNE,  1806.* 


The  Committee,  to  whom  was  referred  the  order  of  the  House 
of  Representatives,  "  to  consider,  whether  any  addition  is  necessary 
to  be  made  to  the  salaries  of  the  judges  of  the  Supreme  Judicial 
Court  of  this  Commonwealth,"  report:  That  the  constitution  of 
this  Commonwealth  has  provided,  "  that  permanent  and  honorable 
salaries  shall  be  established  by  law,  for  the  justices  of  the  Supreme 
Judicial  Court;  and  that  if  it  shall  be  found,  that  any  of  the  salaries 
aforesaid,  so  established,  are  insufficient,  they  shall,  from  time  to 
time,  be  enlarged,  as  the  General  Court  shall  judge  proper." 

By  an  act  of  February,  1781,  soon  after  the  constitution  was 
adopted,  the  salary  of  the  chief  justice  was  fixed  at  $1066.66,  and 
of  the  other  justices  of  said  court  at  ,$1000  each,  per  annum. 
These  continued  to  be  their  salaries,  until,  by  an  act  of  February, 
1790,  that  of  chief  justice  was  fixed  at  $1*233.33,  and  of  the  other 
justices  at  $1166.66.  These  last  have  ever  since  continued  to  be, 
and  still  are,  the  only  permanent  compensations  of  the  said  justices, 
they  being  debarred  by  law  from  receiving  any  fees  or  perquisites. 
By  occasional  resolves,  from  1794  to  1S04,  temporary  grants  have 
been  made  to  the  said  justices,  of  sums,  varying  from  $166.66  to 
$600;  but  these  grants  have  been  limited  to  one  year.  By  a 
resolve  of  March,  1804,  a  grant  was  made  to  the  said  justices  of 
$800  annually  for  three  years,  commencing  in  January,  1804, 
which,  of  course,  expires  with  the  present  year. 


*  "  Permit  me  to  recommend  to  your  consideration  the  contents  of  a  letter,  ad- 
dressed to  me  by  Theophilus  Parsons  Esq.,  Chief  Justice  of  the  Supreme  Judicial 
Court,  relating  to  the  compensation  allowed  to  justices  of  that  court,  and  particu- 
larly to  the  grants  made  by  the  Legislature  in  part  of  it,  which  are  not  permanent." 
—  Extract  from  Gov.  Strong's  Message,  June,  1806. 


480  POLITICAL    PAPERS. 

The  Committee  farther  report,  that,  although  it  would  be  unbe- 
coming in  them  to  decide,  that  the  acts  of  the  legislature  are  in  any 
manner  a  violation  of  the  constitution  ;  yet,  they  respectfully  sub- 
mit, whether  the  temporary  grants  aforesaid  can  be  considered  such 
a  permanent  compensation,  as  is  within  the  purview  of  the  article  of 
the  constitution  above  recited,  and  consistent  with  the  clause  in  the 
Declaration  of  Rights,  that  the  justices  of  the  Supreme  Judicial 
Court  "  should  have  honorable  salaries  ascertained  and  established 
by  standing  laws." 

Whatever  may  be  the  correct  opinion  on  this  subject,  the  Com- 
mittee entertain  great  doubts  of  the  policy  of  any  measure,  which 
has  the  immediate  tendency  to  place  the  judicial  department  at  the 
footstool  of  the  legislature.  They  beg  leave  to  quote  for  this  pur- 
pose the  words  of  the  constitution,  applied  to  the  salary  of  the 
governor,  and  which  seem,  from  their  connexion  with  the  clause 
relative  to  the  salaries  of  the  judges,  as  well  as  from  their  forcible 
expression,  to  be  peculiarly  directed  to  this  principle:  "  As  the 
public  good  requires,  that  the  governor  should  not  be  under  the 
undue  influence  of  any  of  the  members  of  the  General  Court,  by  a 
dependence  on  them  for  a  support;  that  he  should,  in  all  cases,  act 
with  freedom  for  the  benefit  of  the  public  ;  that  he  should  not  have 
his  attention  necessarily  directed  from  that  object  to  his  private 
concerns;  and  that  he  should  maintain  the  dignity  of  the  Common- 
wealth in  the  character  of  its  chief  magistrate  ;  it  is  necessary  he 
should  have  an  honorable  stated  salary,  of  a  fixed  value,  amply 
sufficient  for  those  purposes,  and  established  by  standing  laws." 

These  reasons,  so  applicable  to  a  chief  magistrate,  certainly  lose 
none  of  their  force  when  considered  in  reference  to  courts  of  law. 
Before  these  tribunals,  the  property,  the  reputation,  the  rights  and 
liberties,  and,  above  all,  the  life,  of  every  individual  citizen  of  this 
Commonwealth,  are  subjects  of  decision.  On  the  inflexible  integrity, 
the  profound  knowledge,  and  strict  impartiality,  of  the  justices  of  the 
Supreme  Judicial  Court,  who  are  arbiters  in  the  last  resort,  assisted 
by  intelligent  jurors,  rests  every  thing,  which  is  dear  to  us  in  life, 
and  which  can  affect  us  with  posterity ;  every  thing,  which  is  hon- 
orable in  character,  or  valuable  in  enjoyment ;  in  one  word,  every 
thing,  which  renders  society  a  blessing,  and  secures  its  continuance. 

The  Committee  would  therefore  inquire,  whether  it  be  not  of  the 
last  importance,  that  judges  should  be  elevated  above  the  hope  of 
reward,  the  influence  of  affection,  or  the  fear  of  censure?  Whether 
they  should  not  be  wholly  exempt  from  any  consideration  of  imme- 


REPORT    ON    THE    SALARIES    OF    THE    JUDICIARY.  4dl 

diate  support,  and  placed  as  a  refuge  and  protection  in  times  of 
political  heat,  beyond  the  necessity  of  bending  to  the  changes  of 
those  times,  in  order  to  gather  favor,  or  avert  calamity?  Whether 
they  should  not  be  placed  beyond  even  the  temptation  of  accom- 
modating the  law  to  present  purposes;  and,  by  gratifying  ambition 
or  interest,  to  break  down  the  rules,  that  guard  the  security  of  prop- 
erty and  the  safety  of  rights?  Whether,  indeed,  their  compensation 
ought  not  to  be  such,  as  to  command  the  first  talents  in  the  com- 
munity, and  insure  to  those,  who  are  learned  and  honest,  as  well 
as  those,  who  are  great  and  rich,  the  participation  of  those  juridical 
honors,  to  which  the  lucubrations  of  twenty  laborious  years  are 
scarcely  adequate?  The  Committee  beg  leave  to  submit,  as  their 
opinion,  that  these  inquiries  must  lead  to  a  conclusion,  that  inde- 
pendence in  compensation,  as  well  as  in  tenure  of  office,  is  essential 
to  the  permanent  respectability  of  the  judicial  department. 

The  Committee  further  report,  that,  since  the  year  1790,  the 
business  of  the  justices  of  the  Supreme  Judicial  Court  has  increased 
at  least  fourfold.  They  are  obliged  to  travel  into  many  counties 
twice  a  year,  where  formerly  they  travelled  but  once  ;  and  in  some 
counties  terms  of  the  said  Court  are  now  held,  where  formerly  there 
was  none.  The  great  extension  of  population  and  agriculture, 
the  variety  and  intricacy  of  a  new  and  continually  increasing  com- 
merce, and  the  almost  endless  other  subjects  of  litigation,  conse- 
quent on  a  nourishing  domestic  intercourse,  have  swelled,  and  are 
annually  swelling,  the  already  crowded  dockets  of  every  judicial 
court.  For  six  months  every  year  the  judges  of  the  Supreme 
Judicial  Court  are  travelling  the  circuits  of  the  Commonwealth,  and 
their  expenses  on  this  account  are  great.  The  other  six  months 
are  absorbed  in  pursuits,  not  less  fatiguing  to  themselves,  nor  less 
important  to  the  people.  In  the  vacations,  they  are  necessarily 
engaged  in  forming  and  digesting  opinions  on  special  verdicts, 
reserved  cases,  cases  on  demurrer,  and  other  questions  of  law, 
referred  solely  to  the  Court  for  decision,  which  are  too  intricate  for 
judgment  on  the  circuits,  and  require  deep  and  minute  investigation 
in  the  closet.  Their  whole  time,  therefore,  both  for  their  own 
reputation  and  for  the  despatch  of  justice,  must  be  devoted  to  the 
public.  Domestic  concerns,  and,  much  more,  the  active  pursuit  of 
property,  are,  in  a  great  degree,  inconsistent  with  their  duties ;  and, 
as  they  are  thus  shut  out  from  the  acquisition  of  wealth,  it  would 
seem  to  be  the  proper  office  of  the  legislature  to  become  the 
guardians  of  their  families,  and  the  supporters  of  their  indepen- 
61 


482 


POLITICAL    PAPERS. 


dcnce.  Considering,  therefore,  the  salaries  established  in  1790, 
either  in  regard  to  the  increased  duties  of  the  judges,  the  greater 
number  of  circuits,  and  the  vast  addition  of  business  in  the 
courts,  or  the  great  depreciation  of  money,  and  consequent  higher 
price  of  the  necessaries  of  life,  the  Committee  cannot  but  think, 
that  double  those  salaries  at  the  present  time  would  hardly  be 
a  compensation  equivalent  to  those  permanently  established  in 
1790  ;  which,  from  grants  almost  immediately  succeeding,  seem  to 
have  been  then  deemed  insufficient  by  the  legislature. 

With  these  views,  the  Committee  respectfully  report,  that  in  their 
opinion  it  is  necessary  to  make  an  addition  to  the  salaries  of  the 
judges  of  the  Supreme  Judicial  Court  of  this  Commonwealth  ;  and 
they  report  a  bill  accordingly.* 

By  order  of  the  Committee. 

Joseph  Story,  Chairman. 

*  The  Bill  passed  into  a  Law  ;  and  the  salaries  were  again  increased  by  another 
act,  passed  in  1809. 


MEMORIAL 


OF  THE  INHABITANTS  OF  SALEM,  MASS.,  ADDRESSED  TO  THE  PRESIDENT 
AND  CONGRESS  OF  THE  UNITED  STATES,  JAN.,  1806,  RELATIVE  TO  THE 
INFRINGEMENTS   OF   THE   NEUTRAL  TRADE   OF  THE   UNITED  STATES. 


The  Memorial  of  the  Inhabitants  Sec.,  humbly  showeth.  That 
on  ordinary  occasions  they  have  deemed  it  unnecessary  to  apply 
for  redress  of  grievances  to  the  Government  of  their  country, 
confiding  in  the  rectitude  and  wisdom  of  its  councils;  and,  though 
their  confidence  iu  this  respect  is  undiminished,  yet,  as  questions  of 
national  moment  are  now  agitated,  and  aggressions  committed  on 
our  commerce  in  a  manner  unprecedented,  they  deem  it  their  duty 
to  approach  the  constituted  authorities,  and  express  their  sentiments 
with  fidelity  and  deliberation. 

It  has  been  a  source  of  the  purest  satisfaction  to  your  Memo- 
rialists, that,  while  foreign  nations  have  been  engaged  in  wars,  which 
in  their  nature  and  consequences  have  transcended  the  limits  of 
human  foresight,  the  United  States  have,  under  the  benign  care  of 
Providence,  been  preserved  in  the  enjoyment  of  peace  and  liberty. 
They  have  beheld  with  pleasure  our  commerce,  at  first  feeble  and 
confined,  gradually  expanding  with  awakened  enterprise,  until  it 
has  reached  the  farthest  shores,  and  embraced  the  most  inhospitable 
climes.  This  commerce,  prosecuted  with  increasing  vigor,  and 
fostered  by  new  aids,  has  continually  brought  to  our  ports  the 
wealth  of  all  nations,  and,  by  opening  a  liberal  intercourse,  added 
fresh  zeal  to  foreign  industry  and  domestic  labor. 

Your  Memorialists,  considering  war  an  evil,  which  cannot  be 
confined  in  its  consequences  to  belligerents,  even  when  prosecuted 
with  good  faith  and  amicable  intentions  towards  neutrals,  and  believ- 
ing it  the  sound  policy  of  the  United  States  to  avoid  every  entan- 
glement in  it,  as  injurious  to  internal  improvement  and  external 
interests,  have  witnessed  with  unhesitating  approbation  the  disposition 


484  POLITICAL    PAPERS. 

to  neutrality  patronized  by  the  General  Government,  at  times  when 
national  wrongs  have  been  pressed  upon  us  with  peculiar  aggrava- 
tions, and  seemed  to  point  to  a  summary  redress.  Firmness  and  mod- 
eration have  happily  secured  all  the  advantages  of  successful  war; 
and  the  sober  appeal  of  reason  has  carried  conviction  to  foreign  nations. 
From  considerations  of  a  similar  nature,  your  Memorialists  have  sub- 
mitted to  the  injuries  of  belligerent-  dming  the  late  European  war, 
and  awaited  with  confidence  the  decisions  of  prize  tribunals,  insti- 
tuted to  adjust  national  rights,  and  afford  a  fair,  though  tardy,  redress 
to  grievances.  To  these  tribunals,  elevated  in  the  presence  of  the 
world,  as  the  learned  and  impartial  courts  of  nations,  they  have 
hoped,  that  all  parties  might  appeal  for  justice,  and  receive  a 
righteous  award.  In  some  instances  they  have  been  disappointed  ; 
in  others  they  have  realized  their  expectations.  And  even  when 
they  could  not  admit  the  correctness  of  some  decisions,  principles  of 
national  law  have  been  expounded,  and  rules  prescribed,  which 
might  serve  as  polestars  for  their  future  direction. 

Your  Memorialists,  however,  have  witnessed,  with  deep  regret 
and  deep  anxiety,  that  to  some  of  these  tribunals  they  can  no  longer 
appeal  for  safety.  New  interpretations  of  old  rules,  and  new  glosses 
on  ancient  doctrines,  have  been  put  forth  to  control  the  course  of 
neutral  commerce,  and  restrain,  if  not  annihilate,  its  most  beneficial 
operations.  Their  surprise  has  been  greater  in  this  respect,  be- 
cause the  nation,  which  has  adopted  them,  is  one  from  which  we  had 
a  right  to  expect  the  most  conciliatory  conduct;  since  with  her  ulti- 
mately centre  the  proceeds  of  our  commerce,  and  from  her  we  pur- 
chase the  greatest  portion  of  her  staple  manufactures.  The  interests 
of  Great  Britain  and  the  United  States  seem  in  this  respect  mutual. 
We  consume  the  products  of  her  industry,  and  give  her  in  return,  be- 
sides large  sums  of  money,  raw  materials,  by  which  she  may  levy  new 
contributions  upon  us.  Similarity  of  manners  and  habits,  of  language 
and  education,  have  added  artificial  inducements  for  intercourse,  and 
gained  for  her  among  us  a  respect  not  slightly  to  be  viewed,  or  incon- 
siderately forfeited.  On  all  occasions,  the  United  States  have  exhib- 
ited towards  her  an  amicable  disposition,  and  a  just,  and,  it  may  be  add- 
ed, a  generous,  policy.  If,  therefore,  we  had  favors  to  ask  or  receive, 
our  claims  would  be  peculiarly  strong  upon  her,  because  we  have 
been  emphatically  the  sinews  of  her  opulence.  But  it  is  believed, 
that  the  United  States  never  asked  of  any  nation  more  than  justice, 
and  are  willing  to  be  bound  by  the  established  rules  of  commerce. 
Your  Memorialists,  therefore,  express  deep  regret,  because  the  pub- 


SALEM  MEMORIAL  RELATIVE  TO  BRITISH   AGGRESSIONS.       485 

lie  confidence  lias  been  shaken,  which  may  not  easily  be  restored; 
and  deep  anxiety,  because  the  principles  alluded  to,  if  conceded, 
must  eventually  prostrate  our  trade,  or  leave  it  at  the  arbitrary  dis- 
cretion of  the  belligerents.  Whether  peace  or  war  prevail,  the 
baneful  influence  of  these  principles  will  every  where  be  felt;  and 
in  the  latter  predicament  we  shall,  as  neutrals,  share  the  mischiefs 
of  the  war,  without  the  chances  of  the  benefits  of  it. 

With  these  impressions,  your  Memorialists  respectfully  submit 
some  observations  on  the  nature  and  importance  of  the  principles 
avowed  by  the  British  High  Court  of  Admiralty.  On  the  present 
occasion  they  would  avoid  the  discussion  of  contested  points  respect- 
ing the  freedom  of  commerce,  on  which  civilians  have  entertained 
different  opinions.  They  would  avoid  the  question,  how  far  even  a 
direct  trade,  carried  on  by  neutrals  between  the  colony  and  mother 
country,  with  bona  fide  neutral  property,  is  protected  by  the  law  of 
nations,  though  it  may  justly  be  a  ground  of  national  investigation. 
They  are  willing  to  avoid  these  extrinsic,  though  important,  subjects, 
and  meet  the  principle  of  the  English  courts  upon  the  laws  and 
usages  sanctioned  by  the  practice  of  nations. 

The  principle  recently  established  by  Great  Britain  is,  as  your 
Memorialists  understand  it,  that  it  is  not  competent  for  a  neutral  to 
carry  on  in  war  any  trade,  which  he  is  not  accustomed  to  do  in 
peace  ;  and  that  he  shall  not  be  permitted  to  effect  that  in  a  cir- 
cuitous, which  is  inhibited  in  a  direct,  trade.  As  corollaries  from 
this  principle,  she  insists,  that  the  colonial  trade,  exercised  by  neu- 
trals, shall  not  extend  beyond  the  accustomed  peace  establishment ; 
and  that  whenever  the  neutral  imports  into  his  own  country  colonial 
produce,  with  the  intention  to  tranship  it  10  the  mother  country,  if 
a  direct  intercourse  be  interdicted  in  peace,  the  circuity  of  the 
route  shall  not  protect  the  property  from  confiscation.  It  seems 
admitted,  that  such  circuitous  route,  with  such  intention,  is  not 
considered  as  evidence  of  enemy's  property,  confiscable  within 
ordinary  rules;  but  as  a  distinct,  substantial,  principle  of  condemna- 
tion, independent  of  the  other  both  in  efficacy  and  application. 
For  it  yields  not  to  the  most  clear  proof  of  neutral  property,  or 
innocent,  though  misdirected,  conduct.  The  unaccustomed  trade, 
or  the  importation  with  specific  intentions,  are  the  tests,  by  which 
every  voyage  is  to  be  tried. 

If  these  doctrines  form  a  part  of  the  law  of  nations,  however  mis- 
chievous they  may  be  in  operation,  the  United  States  must  submit 
to  them,  until  they  are  relaxed  by  particular  conventions.     Though 


486  POLITICAL    PAPERS. 

our  commerce  should  be  oppressed,  and  our  enteprise  crushed,  yet 
we  are  bound  to  acquiesce,  if  the  sanction  of  universal  justice 
require  it. 

Your  Memorialists,  however,  beg  leave,  before  they  consider  the 
law  of  nations  in  this  particular,  to  advert  to  a  few  of  the  conse- 
quences resulting  from  this  rule  ;  and,  if  they  do  not  greatly  mistake, 
from  thence  will  arise  a  strong  argument  of  its  inadmissibility. 

In  the  first  place,  great  evils  must,  in  the  nature  of  things,  result 
from  the  indefiniteness  of  what  is  the  accustomed  trade.  Nations 
are  continually  changing  their  policy,  their  imports  and  exports, 
their  manufactures,  their  staples,  and  their  commercial  connexions. 
In  peace,  as  well  as  in  war,  peculiar  circumstances  induce  them 
to  open  or  close  a  traffic  ;  and  these  circumstances  arise  as  often 
from  accidental  caprice  as  from  political  wisdom.  Besides  these,  the 
silent  operation  of  time,  by  destroying  old  sources  of  revenue,  and 
developing  new  wants,  and,  in  a  more  important  view,  by  erecting 
the  grandeur  of  one  state  on  the  destruction  of  another,  with  secret 
fatality  changes  the  channels  of  commerce,  and  forbids  it  to  flow 
in  an  uniform  course.  It  seems  conceded  on  all  sides,  that  the  rule 
shall  not  apply  to  every  case ;  and  that  those  changes,  which  seem  not 
to  be  the  result  of  a  necessity  imposed  by  an  enemy,  are  exempted 
from  its  operation.  But  how  shall  these  limits  be  defined  ?  Every 
nation  varies  its  policy  in  this  respect  in  time  of  war ;  and  even 
Great  Britain  relaxes  her  navigation  acts  to  meet  the  ordinary  exi- 
gencies of  it.  On  such  occasions  she  admits  neutrals  to  import  into 
her  dominions  articles  not  the  growth  of  their  own  country.  She 
admits  foreigners  into  her  mercantile,  as  well  as  her  military,  marine. 
She  opens  her  colonies  to  importations  strictly  forbidden  in  peace  ; 
and  allowed  with  jealous  caution,  even  under  the  pressure  of  war. 
To  changes  of  this  nature,  if  they  do  not  arise  out  of  the  predomi- 
nance of  the  enemy's  force,  or  out  of  any  necessity  resulting  there- 
from, her  own  civilians  avow,  that  the  rule  of  accustomed  trade  ought 
not  to  extend.  According  to  them,  it  is  not  every  convenience,  or 
even  every  necessity,  arising  out  of  the  state  of  war,  but  that  necessity, 
which  arises  out  of  the  impossibility  of  otherwise  providing  against 
the  urgency  of  the  distress,  inflicted  by  the  hand  of  a  superior 
enemy,  that  can  be  admitted  to  produce  such  an  effect.  But  in 
what  manner  shall  this  impossibility  be  determined?  How  shall 
we  distinguish  between  the  ordinary  and  the  extraordinary  neces- 
sities of  war? — 'between  those  evils  inflicted  by  a  superior  force, 
and  those  resulting  from  general   embarrassment  ?     How  shall  we 


SALEM  MEMORIAL  RELATIVE  TO  BRITISH  AGGRESSIONS.       487 

distinguish,  which  is  the  predominant  power,  when  one  may  be 
conqueror  at  one  point,  and  conquered  at  another?  —  one  all-powerful 
by  sea,  another  all-powerful  by  land?  How  shall  we  provide  for, 
or  foresee,  the  changes  of  the  day,  when  time  with  unmeasured 
rapidity  retrieves  losses  in  the  hour  of  defeat,  and  destroys  power 
in  the  hour  of  victory  ?  In  the  opinion  of  your  Memorialists,  there 
is  but  one  test  of  such  predominancy,  and  that  is  within  the  old  law 
of  nations.  It  is,  when  the  belligerent  is  able  to  blockade  the  ports 
of  his  enemy  ;  and  then  his  right  to  exclude  neutrals  is  coextensive 
with  this  ability  to  blockade.  If  any  other  test  be  resorted  to  ;  if 
the  unlimited  ingenuity  of  the  discretion  of  courts  of  admiralty  be 
exercised  in  the  application  or  denial  of  the  rule  ;  the  rights  of  neu- 
trals will  change  with  the  policy  of  every  administration,  and  rise 
and  fall  with  the  pressure  of  hostilities,  and  the  safety  of  depreda- 
tion. Surely,  no  principle  of  the  law  of  nations  can  be  bottomed 
on  so  fluctuating  a  basis.  It  would  reverse  the  nature  of  all  law, 
which  is  fixed  and  determinate,  and  substitute  a  discretion  little  less 
injurious  than  despotism. 

In  another  view,  the  rule  appears  to  your  Memorialists  not  less 
untenable  and  unjust.  It  is  stated,  as  a  part  of  it,  that,  if  colonial 
produce  be  imported  by  any  person  with  an  intention  to  tranship 
it  on  his  own  account  to  the  mother  country,  it  is  subject  to  con- 
fiscation ;  but  if  imported  for  the  purpose  of  general  commerce, 
and  thrown  into  the  market  for  general  transhipment,  it  is  within 
the  exception.  To  distinguish  between  general  and  particular 
intentions,  and  to  separate  things  so  subtile  in  their  own  natures, 
and  almost  incapable  of  proof,  for  the  purposes  of  national 
decisions,  seems  a  refinement  reserved  for  the  present  age.  In 
the  nature  of  things  it  can  hardly  be  possible  to  determine  the 
intention  of  a  merchant  in  importation.  These  may  be  formed 
and  fixed  at  one  moment,  and  abandoned  from  a  change  of  cir- 
cumstances at  another.  The  fluctuations  of  foreign  markets,  the 
plenty  or  deficiency  of  the  supply  at  home,  the  nature  of  the  funds, 
the  success  of  the  incipient  voyage,  and  numerous  other  accidents, 
must  continually  change  the  destination  of  importations,  and  divert 
them  into  various  channels.  In  no  case,  therefore,  can  there  arise 
an  indisputable  presumption,  that  a  merchant  imports  with  a  deter- 
mination to  export.  Indeed,  as  his  intention  must  frequently  be 
ambulatory,  the  presumption  lies  as  strongly  the  other  way.  And 
even  if  in  a  few  instances  that  intention  could  be  ascertained, 
thousands  of  cases  must  arise,  in  which  it  would  be  impossible  to 


488  POLITICAL    PAPERS. 

form  a  criterion  for  judgment.    All  must  be  doubt,  caprice,  or  spec- 
ulative construction. 

These  objections  apply  to  the  embarrassments  attending  the  exer- 
cise of  the  rule  respecting  intentions  of  merchants.  But  a  more  seri- 
ous one  may  be  urged  against  it,  grounded  upon  its  inefficacy,  as  it 
respects  both  neutral  and  belligerent.  As  it  respects  the  neutral,  if 
the  rule  is  once  known,  transfers  of  property  will  be  immediately 
made.  There  will  be  an  impossibility  of  preventing  frauds  in  these 
transfers,  (if  they  deserve  the  name,)  by  any  tests  applicable  to 
them,  unless  restrictions  are  imposed,  or  evidence  required,  which  no 
authorities  could  procure,  and  no  independent  nation  ought  to  sub- 
mit to.  As  it  respects  the  belligerent,  the  same  produce  after  sale 
would,  according  to  his  own  principles,  be  admissible  into  the  ports  of 
his  enemy  ;  and  in  that  way  the  same  assistance  would  he  supplied, 
and  the  same  embarrassments  he  prevented.  The  importer  will  com- 
municate a  title  to  his  vendee,  which  he  does  not  himself  possess, 
and  clothe  his  agent  with  an  authority,  which  he  cannot  exercise 
at  his  own  hands.  The  rule,  therefore,  would  require  the  mere 
formality  of  a  sale  ;  hut  it  would  effect  none  of  the  objects  which 
it  professes  to  value;  and  its  foundation  would  be  shaken  by  the 
extent  of  its  exceptions.  Considered  in  this  view,  your  Memorialists 
cannot  hut  suppose,  that  no  such  modification  will  ultimately  pre- 
vail ;  but  by  degrees  the  restriction  will  become  absolute  against  all 
neutral  carriage  of  colonial  produce  to  the  mother  country  under 
every  variety  of  intention,  in  any  other  way  the  rule  might  be 
nugatory,  and  with  this  unmeasured  influence,  it  must  be  ruinous. 

The  foundation  of  this  modern  doctrine  is.  laid  in  this  principle, 
that  the  neutral  has  no  right  by  an  extension  of  this  trade  to  afford 
supplies  to  the  belligerent  ;  because  by  such  trade  he  assists  the 
belligerent  to  ward  off  the  blows  of  his  enemy,  and  to  oppose  for  a 
longer  period  the  dominion  of  his  force.  But  to  this  your  Memo- 
rialists deem  it  a  conclusive  answer,  that  the  proposition  proves  too 
much  ;  that,  if  true,  it  is  a  foundation  for  a  far  more  broad  and 
sweeping  principle  ;  namely,  that  every  commerce  with  a  belligerent 
is  inhibited  to  neutrals  ;  lor  every  commerce  assists  him  in  resistance, 
and  diminishes  his  necessities.  A  doctrine  thus  comprehensive  has 
never  yet  been  avowed  ;  and  it  is  presumed  never  will  be.  Yet 
such  must  he  the  logical  conclusion;  and  it  shows  irresistibly  the 
absurdity  of  the  assumed  premises.  The  accustomed,  as  well  as 
unaccustomed,  trade,  is  within  the  terms  of  the  principle,  and  must 
stand  or  fall  together.    Either  the  doctrine  is  unsound,  and  assumed 


SALEM  MEMORIAL    RELATIVE  TO  BRITISH   AGGRESSIONS.        489 

as  a  mere  pretext  for  predatory  seizures,  or  neutrals  have  no  rights 
as  such,  and  must  endure  the  calamities  inflicted  by  belligerents  in 
a  contest,  in  which  they  have  no  voice,  and  from  which  they  can 
reap  only  injur}'. 

Other  considerations  add  force  to  the  preceding  remarks.  It  is 
well  known,  that  in  time  of  war  neutrals  cannot  carry  on  even  their 
accustomed  trade  in  its  full  extent.  They  are  prohibited  from 
trading  in  contraband  goods,  and  to  blockaded  ports.  Variations 
necessarily  arise  in  the  relations  of  the  hostile  powers,  which  the 
neutral  ought  to  possess  a  right  to  turn  to  his  profit,  as  an  indemnity 
for  the  obstructions  of  his  old  trade.  These  obstructions  are  of  a 
very  serious  nature.  When  exercised  in  the  mildest  form,  they 
produce  oppressive  searches  and  delays,  expensive  litigation,  and 
often  total  failure  of  an  otherwise  lucrative  voyage.  Reason  would 
therefore  seem  to  declare,  that  for  hazards  of  this  nature  the  bene- 
fits arising  to  neutrals  from  war  are  not  more  than  a  just  equivalent. 
But,  if  the  obstructions  be  enforced,  and  no  new  channels  permitted, 
it  seems  hardly  too  much  to  say,  that  they  must  lead  to  an  extinc- 
tion of  all  neutral  commerce.  If  one  belligerent  adopt  the  rule, 
another  has  the  same  right  ;  and  regulations  of  colonial  monopoly 
would  then  serve  as  false  lures,  only  to  ensnare  and  betray  neutral 
navigation.  It  is  somewhat  singular,  that  a  belligerent  should  invite 
a  trade  with  itself,  which  it  declares  fraudulent  with  its  enemy  ;  and 
should  lift  the  arm  of  power  to  crush  the  neutral,  whose  conduct  is 
criminal  only  when  it  ceases  to  be  partial. 

Such  are  the  remarks,  which  your  Memorialists  respectfully  submit 
upon  the  rule  considered  in  itself.  On  this  examination  they  confess 
it  appears  to  them  fundamentally  incorrect.  It  subjects  commerce  to 
fluctuating  decisions,  overthrows  the  ordinary  rules  of  evidence, 
and  places  an  immense  power  to  be  wielded  at  the  uncontrollable 
discretion  of  magistrates  appointed  by  a  single  party.  It  therefore 
wants  all  the  discriminative  features  of  a  fundamental  proposition 
of  the  law  of  nations  —  uniformity,  precision,  and  general  applica- 
bility. It  would,  in  their  opinion,  if  established,  create  greater  evils 
than  it  professes  to  redress,  by  perpetuating  strife,  destroying  the 
emoluments  of  trade,  embarrassing  commercial  intercourse,  and 
letting  loose  the  passions  to  prey  on  the  miseries  and  plunder  the 
property  of  the  innocent.  It  would  subject  neutrals  to  hazards 
nearly  as  perilous,  as  those  of  actual  hostilities;  and,  independently 
of  its  influence  in  stimulating  to  revenge  and  retaliation,  it  would 
transfer  the  benefits  of  peace  to  any  victorious  usurper  of  the  ocean. 
62 


490  POLITICAL    PAPERS. 

But  your  Memorialists  are  unwilling  to  rest  the  question  on  the 
preceding  grounds,  however  supported   by  reason.     They  appeal 
to  higher  considerations,   and    deny,  that   the   rule   is,   or  ever  has 
made    a   part   of  the    public   law,   or    is    recognised   by  usage    or 
prescription  among  nations.     They  admit,  that  uninterrupted  and 
general  usage,  fortified  by  open  acquiescence,  forms  a  strong  argu- 
ment,  perhaps   a  conclusive   proof,   of  the   adoption  of  any  rule  ; 
that,  if  such  usage  had  existed  in  the  present  case,  and  had  been 
invariably  pursued,  the  presumption  would  have  heen  violent,  that 
the  doctrine  is  just,  and  ought  not  now  to  be  shaken.     But  your 
Memorialists   have   in    vain   sought   in   ancient   jurists,   universally 
consulted  and  approved,  any  principle,  that  bears  in  its  bosom  the 
present.     On  the   contrary,   every   page   appears  to  give  a  direct 
contradiction  to  it.  They  adhere  to  the  ancient  interpretation  of  the 
law  of  nations,  which  pronounces,  that  the  goods  of  an  enemy  are 
lawful  prize,  and  those  of  a  friend  are  free  ;  that  the  neutial,  e  xcept 
in  cases  of  blockade  and  contraband,  has  a  right  to  the  uninterrupted 
pursuit  of  his  commerce,  when  carried  on  with  his  own  property, 
at  all  events  in  a  direct  trade  from  his   own  country.     Such  your 
Memorialists  deem  to  have  been  the  incontestihle  rights  of  neutrals, 
established  for  more  than  two  centuries  by  universal  acknowledg- 
ment,  and   acted    upon,   while   a   flourishing   intercourse  subsisted 
among  all  maritime  nations.     During  the  same  period,  Great  Britain, 
France,  Spain,  Portugal,  and  Holland,  have  possessed  extensive 
colonies,  and  engaged  in  commercial  enterprises  with  an  uncommon 
spirit  of  rivalry.     If,  therefore,  any  such  rule,  as  is  now  claimed,  had 
existed,  innumerable  cases  must  have  occurred  in  the  controversies 
of    these  nations  to  legitimate   its   introduction,  and  authorize  its 
application.     Yet  no  instance   has   been  adduced  in  diplomatic  or 
admiralty  annals,  which  savors  of  a  reference  to  such  a  rule.     The 
approved  publicists,  to  whom  in  national  contests  appeals  are  made, 
intimate  none,  and  lay  down  the  law   in   as  broad   and  satisfactory 
terms,  as  your  Memorialists. 

Your  Memorialists  are  aware,  that  even  the  advocates  of  Great 
Britain  have  not  pretended  to  ascertain  the  existence  of  the  pre- 
tended rule  previous  to  the  year  1756.  To  this  period  they  refer 
for  its  first  establishment,  and  from  this  origin  deduce  its  universal 
reception.  They  pretend  not  to  quote  any  foreign  adjudications  as  in 
point ;  but  rest  satisfied,  that  their  own  courts  were  competent  to 
establish  the  law,  and  to  give  it  binding  efficacy  over  all  nations. 
To  such  conclusions   your  Memorialists  confess   themselves  unable 


SALEM  MEMORIAL  RELATIVE  TO  BRITISH   AGGRESSIONS.       491 

to  bow.  They  conceive,  that  it  is  not  within  the  authority  of  any  one 
nation  to  legislate  for  the  rest ;  and  that  the  law  of  nations,  being 
founded  on  the  tacit  convention  of  the  nations  that  observe  it,  can 
be  binding  only  on  those  nations,  which  have  adopted  it.  Any  other 
conclusion  would  lead  to  the  most  mischievous  consequences,  and 
oblige  every  nation  to  vindicate  every  other  against  aggressions, though 
its  own  rights  might  be  undisputed.  To  give  any  precedent,  there- 
fore, a  binding  authority  among  nations,  it  must  have  been  recog- 
nised as  such  by  them  ;  and  no  argument  of  its  admission  can  be 
drawn  from  their  silence,  when  the  subject  did  not  necessarily 
engage  their  immediate  interest.  An  injurious  pretension,  when 
not  applied  to  a  particular  state,  might  be  easily  dismissed  without 
consideration. 

But  your  Memorialists,  after  all  the  inquiry,  which  they  have 
been  able  to  make,  confess  themselves  wholly  ignorant  of  any 
precedent  of  the  present  rule  in  the  year  1756.  The  cases  of 
that  period,  which  are  relied  on  as  proof,  seem  to  them  wholly 
inadequate  for  the  purpose.  As  far  as  their  researches  extend, 
those  cases  respected  the  Dutch,  and  proceeded  on  a  principle 
entirely  different.  They  were  cases,  in  which  Dutch  vessels 
became  the  carriers  of  colonial  produce,  the  property  of  the  ene- 
mies of  Great  Britain.  This  trade  was  vindicated  on  the  ground  of 
a  special  treaty  between  Great  Britain  and  Holland,  which  provided, 
that  free  ships  should  make  free  goods;  and  it  was  ultimately  de- 
clared illegal,  because  enemies'  goods  were  protected  by  that  treaty 
only  in  the  accustomed  trade.  No  controversy  appears  to  have 
been  raised  as  to  the  security  of  neutral  property  under  similar  cir- 
cumstances. Nor  should  it  be  forgotten,  that  the  Dutch  protested, 
in  terms  of  the  warmest  reprobation,  against  those  condemnations, 
and  asserted  them  to  be  contrary  to  the  general  law,  as  well  as  to  the 
faith  of  treaties.  Those  cases  seem,  therefore,  certainly  to  fail  in 
analogy  to  those,  which  they  are  cited  to  govern.  In  the  one  class, 
the  property  is  neutral ;  in  the  other,  hostile;  in  the  one,  the  trade 
is  for  the  sole  benefit  of  the  neutral ;  in  the  other,  for  the  sole 
benefit  of  the  belligerent.  In  a  word,  the  one  respects  the  rights 
of  peaceful  nations  according  to  the  public  law ;  the  other  the 
construction  of  particular  treaties.  The  precedent  seems,  therefore, 
to  want  every  essential  similitude ;  and  is  traversable  in  every 
variety  of  its  application. 

Yet,  admitting  the  precedent  to  be  in  point,  if  it  stands  solitary, 
if  it   has  subsequently    slumbered  during  nearly  fifty  years,  unac- 


492  POLITICAL    PAPERS. 

knowledged  abroad,  and  unenforced  at  home  ;  it  surely  cannot  weigh 
on  the  present  occasion.  It  is  conceded  by  the  British  civilians, 
that  during  the  American  revolution  the  doctrine  was  entirely  pre- 
termitted, and  the  commerce  of  neutrals  was  pursued  according  to 
the  ancient  code.  Many  cases  of  this  period  might  be  cited  from 
the  admiralty  records,  which  overthrow  the  rule,  and  expressly 
vindicate  the  opposite  rule.  If  precedents  are  to  decide,  the  judgments 
of  a  tribunal  established  in  Great  Britain  under  her  sole  appointment, 
and  acting  with  open  powers,  must  surely,  when  acquiescence  creates 
the  law,  completely  establish  the  renunciation  of  the  contested  rule. 
It  is  in  vain  to  resort  to  conjectures  or  ingenious  subtilties  to  fritter 
away  authorities.  The  faith  of  the  nation  has  been  pledged  by  its 
tribunals  ;  and  it  is  too  late  now  to  travel  out  of  the  record.  Place 
the  whole  argument  of  precedent  in  its  strongest  light,  and  it  will 
appear,  that  in  the  year  1756  the  doctrine  was  first  assumed,  and 
in  the  year  1801  was  first  executed. 

So  far,  however,  from  being  recognised,  this  pretended  rule  of 
the  year  1756  was  pointedly  denied,  at  the  moment  of  its  introduc- 
tion, by  the  power  affected  by  it ;  and  on  its  late  resuscitation  it  has 
met  the  determined  reprobation  of  the  United  States.  Our  minis- 
ter at  the  Court  of  London,  on  the  development  of  it  in  the  year 
1801,  remonstrated  against  it  in  a  spirited  memorial.  Indeed, 
Russia,  France,  Sweden,  Denmark,  Prussia,  Portugal,  and  Austria, 
in  the  celebrated  League  of  the  armed  neutrality  in  the  year  1780, 
expressly  declared,  and  Great  Britain  was  then  compelled  to  admit, 
as  the  law  of  nations,  that  all  neutrals  may  freely  navigate  from 
port  to  port,  and  on  the  coasts  of  the  nations  at  war.  Contraband 
articles  and  blockaded  ports  were  the  only  admitted  exceptions. 
This  solemn  protest  of  Europe,  after  an  elaborate  discussion,  in 
which  all  neutral  nations  assisted,  is  singly  opposed  by  the  instruc- 
tions of  Great  Britain,  and  is  to  be  outweighed  by  an  obscure  and 
resisted  precedent.  Nay  more,  the  united  voice  of  the  maritime 
world,  and  the  practice  of  ages,  must  yield  to  the  interested  decis- 
ions of  a  single  state,  and  change  with  the  varying  policy  of  its 
cabinet.  There  is,  indeed,  no  difficulty  in  referring  principles  to 
former  times,  when  it  suits  the  public  convenience  ;  and  as  the 
argument  of  ancient  usage  is  of  deep  concern  in  national  preten- 
sions, it  is  too  often  a  cover  for  unjustifiable  spoliations. 

With  these  preliminaries,  your  Memorialists  feel  confidence  in 
asserting,  that  goods  not  contraband,  fairly  purchased  by  the  neu- 
tral, are  free  to  the  market  of  every  country,  and   protected  from 


SALEM  MEMORIAL  RELATIVE   TO  BRITISH   AGGRESSIONS.       493 

seizure,  except  in  cases  of  blockade.  Guided  by  these  principles, 
they  perceive  a  plain  and  honorable  path  for  commerce.  Beyond 
them  all  is  involved  in  uncertainty. 

It  is  not  the  least  singularity  attending  the  conduct  of  the  present 
war,  that  Great  Britain  has  licensed  herown  subjects  in  a  trade,  which 
she  declares  fraudulent  in  others ;  that  she  admits  them  unmolested 
to  supply  her  enemy  with  means  of  resistance,  when  she  declares,  that 
confiscation  is  the  penalty  of  neutral  succour.  Were  the  ride  ever 
so  just  in  itself,  it  certainly  demands  relaxation,  when  the  bellige- 
rent partakes  the  profits,  and  connives  at  the  breach.  If  its  founda- 
tion be  the  unlawfulness  of  affording  assistance  to  a  distressed 
enemy,  surely  it  ought  not  to  be  enforced,  when  that  assistance  is 
an  authorized  object  of  speculation  with  the  distressing  bellige- 
rent. 

Your  Memorialists  heartily  concur  with  their  fellow-citizens  in 
repelling  with  indignation  the  imputation  of  fraud,  attached  by  Great 
Britain  to  our  colonial  commerce.  They  conceive  it  to  be  a  fair, 
lawful,  and  honorable  traffic,  cherished  by  the  resources  of  our  own 
country,  independent  of  all  foreign  succour.  Fraud  may  occasion- 
ally contaminate  the  transactions  of  all  nations.  But  no  one,  who 
has  estimated  the  extent  of  our  resources,  or  the  respectability  of 
our  merchants,  could  for  a  moment  believe  them  subservient  to  the 
fraudulent  purposes  of  any  nation.  It  is  our  pride  to  believe,  that 
the  American  merchants,  with  very  few  exceptions,  are  as  distin- 
guished for  good  faith  as  any  on  earth.  The  imputation  thrown  on 
them  is  a  masked  pretence  to  repel  the  odium  of  vexatious  injuries, 
and  to  excuse  violations  of  law,  which  cannot  be  justified. 

Your  Memorialists  are  sorry,  that  other  instances  of  hostile  con- 
duct have  been  manifested  by  Great  Britain,  less  direct  in  their 
nature,  but  not  less  derogatory  to  our  sovereignty,  than  those 
above  enumerated.  The  impressment  of  our  seamen,  notwithstand- 
ing clear  proofs  of  citizenship,  the  violation  of  our  jurisdiction  by 
captures  at  the  mouths  of  our  harbours,  and  the  insulting  treatment 
of  our  ships  on  the  ocean,  are  subjects  worthy  the  serious  considera- 
tion of  our  national  councils,  and  will,  we  have  no  doubt,  receive 
an  early,  prompt,  and  decisive  attention. 

Complaints  also  of  a  serious  nature  have  arisen  against  other  nations, 
on  account  of  the  conduct  of  piratical  depredators,  and  the  lawless 
plunderings  by  privateers  on  our  coasts.  From  whatever  authority 
these  evils  proceed,  whether  from  the  secret  connivance  of  foreign 
powers,  or  the   baneful   machinations   of  individuals,  we  trust,  that 


494  POLITICAL    PAPERS. 

our  national  honor  will   not   long  be   unsupported  by  a   national 
naval  force. 

These  are  the  considerations,  which  your  Memorialists  beg  leave 
to  submit  to  the  wisdom  of  the  General  Government.  Though  they 
have  not  suffered  very  greatly  in  their  individual  interests,  they  feel 
deeply  impressed  with  the  opinion,  that  the  cause  is  national,  and 
the  feelings  should  be  the  same.  They  cherish  the  hope,  that  a 
sense  of  mutual  interest  and  good  faith  will  successfully  terminate 
the  present  embarrassments.  They  wish  for  peace,  for  honorable 
peace.  They  ask  for  no  measure,  but  what  justice  approves,  and 
reason  enforces.  They  claim  merely  to  pursue  a  fair  commerce 
with  its  ordinary  privileges,  and  to  support  the  independence  of 
their  country  by  the  acquisitions  of  lawful  industry.  They  wish  to 
take  no  part  in  the  contests,  which  now  convulse  the  world  ;  but, 
acting  with  impartiality  towards  all  nations,  to  reap  the  fruits  of  a 
just  neutrality.  If,  however,  conciliation  cannot  effect  the  purpose 
of  justice,  and  an  appeal  to  arms  be  the  last  and  necessary  protec- 
tion of  our  honor,  they  feel  no  disposition  to  decline  the  common 
danger,  or  shrink  from  the  common  contribution. 

Relying  on  the  wisdom  and  firmness  of  the  General  Government  in 
this  behalf,  they  feel  no  hesitation  to  pledge  their  lives  and  proper- 
ty in  support  of  the  measures,  which  may  be  adopted  to  vindicate 
the  public  rights,  and  redress  the  public  wrongs. 

And,  as  in  duty  bound,  will  ever  pray. 

Signed  in  behalf  of  the  said  Inhabitants  by  their  authority, 

John  Hathorne, 

Joseph  Sprague, 

Jonathan  Mason,  (  ^ 

-d  r,  T      >  Committee. 

.Benjamin  Crowninshield,  Jr. 

Joseph   White,  Jr. 

Joseph  Story. 


MEMORIAL 


OF  THE  MERCHANTS,  AND  OTHERS  INTERESTED  IN  COMMERCE,  IN  SALEM 
MASS.,  AND  ITS  VICINITY,  ADDRESSED  TO  THE  CONGRESS  OF  THE  UNITED 
STATES,  JUNE,  1820,  ON  THE  DISCONTINUANCE  OF  CREDITS  ON  REVENUE 
BONDS,  THE  ABOLITION  OF  DRAWBACKS,  AND  OTHER  RESTRICTIONS  ON 
COMMERCE  PROPOSED  IN  CONGRESS. 


The  undersigned  Memorialists,  Merchants  and  Inhabitants  of 
Salem,  in  the  Commonwealth  of  Massachusetts,  and  of  the  towns 
in  its  vicinity,  beg  leave  most  respectfully  to  represent:  —  That  they 
have  seen,  with  unfeigned  regret  and  surprise,  some  propositions 
recently  brought  forward  in  Congress,  and  others  advocated  by 
respectable  portions  of  the  community,  which  in  their  humble 
opinion  are  calculated  seriously  and  certainly  to  injure,  if  not 
eventually  to  destroy,  some  of  the  most  important  branches  of  the 
commerce  and  navigation  of  the  United  States. 

The  Memorialists  have  not  the  slightest  intention  of  casting 
any  imputation  of  unworthy  motives  upon  those,  from  whom  on  this 
occasion  they  feel  themselves  compelled  to  differ  in  the  most  decided 
manner.  They  are  ready  to  admit,  that  many  of  those,  who  are  inclin- 
ed to  revive  commercial  prohibitions  and  restrictions,  and  to  change 
some  of  the  fundamental  rules  of  our  financial  policy,  are  governed  by 
motives  solely  suggested  by  their  own  views  of  the  national  inter- 
ests. They  are  free  also  to  admit,  that  the  manufacturing  interests 
of  the  country  deserve  to  receive  the  fostering  care  and  patronage 
of  the  government.  But,  while  they  make  these  admissions,  they 
also  beg  leave  to  suggest,  that  the  interests  of  commerce  are  not 
less  vital  to  the  welfare  and  prosperity  of  the  Union,  than  manu- 
factures;  and  that  it  never  can  be  a  sound  or  safe  policy  to  build 
up  the  one  upon  the  ruins  of  the  other.  Under  a  wise  and 
enlightened  revenue  system,  the  commerce  of  our  country  has 
hitherto  advanced  with  a  rapidity  and  force,  which  have  exceeded 
the  most  sanguine  expectations  of  its  friends.     This  commerce  has 


496  POLITICAL    PAPERS. 

contributed  largely  to  the  employment  of  the  capital,  the  industry, 
and  the  enterprise  of  our  citizens.  It  has  quickened  the  march  of 
agriculture  ;  and  by  increasing  the  value,  as  well  as  amount,  of  its 
products,  has  given  to  the  planters  and  husbandmen  a  reward  in 
solid  profit  for  their  toils.  It  has  also  materially  sustained  the  credit 
and  finances  of  the  nation,  by  insuring  a  regular  and  growing 
revenue,  through  a  taxation  scarcely  felt,  and  cheerfully  borne  by 
all  classes  of  our  citizens.  It  has  also  given  birth  to  our  naval 
power,  by  fostering  a  hardy  race  of  seamen,  and  patronizing  those 
art-,  which  are  essential  to  the  building,  preservation,  and  equipment 
of  ships.  It  has  greatly  enlarged,  and,  the  Memorialists  had  almost 
sairl,  created,  the  monied  capital  of  the  country.  And  the  Memo- 
rialists believe,  that  it  cannot  be  too  frequently  or  deeply  inculcated 
as  an  axiom  in  political  economy,  that  productive  capital,  in  what- 
ever manner  added  to  the  stock  of  the  country,  is  equally  beneficial 
to  its  best  interests.  Its  real  value  can  never  be  ascertained  by  the 
sources,  from  whence  it  flows ;  but  from  the  blessings,  which  it  dis- 
penses. A  million  of  dollars  added  to  the  productive  capital  by 
commerce,  is  at  least  as  useful  as  the  same  sum  added  by  manufac- 
tures. 

The  benefits  of  the  commerce  of  the  United  States,  which  have 
been  enumerated,  are  not  deduced  from  theoretical  reasoning;  they 
are  established  by  thirty  years'  experience,  since  the  constitution  was 
adopted.  At  that  time  our  capital  was  small,  and  had  suffered  for 
a  series  of  years  a  continual  diminution.  Our  agriculture  was 
depressed,  and  our  finances  were  embarrassed.  The  changes, 
which  a  thrifty  commerce  during  this  period  has  contributed  to 
produce,  are  so  striking,  that  they  scarcely  require  to  be  stated. 
There  is  not  a  single  portion  of  the  country,  that  has  not  felt  its 
beneficial  influence.  On  the  seaboard,  we  have  every  where  flour- 
ishing towns  and  cities,  the  busy  haunts  of  industry,  where  the  pro- 
ducts of  our  soil  are  accumulated  on  their  transit  to  foreign  countries. 
In  the  interior,  hundreds  of  towns  have  arisen  in  places,  which 
but  a  few  years  since  were  desolate  wastes,  or  dreary  forests.  The 
agriculture  of  the  old  states  has  grown  up,  and  spread  itself  in  a 
thousand  new  directions ;  and  our  cotton  and  our  wheat,  our  tobacco 
and  our  provisions,  are  administering  to  the  wants  of  millions,  to 
whom  even  our  very  name  was  but  a  short  time  ago  utterly  un- 
known. 

The  Memorialists  would  respectfully  ask,  if  it  be  not  a  part  of 
the  duty  of  a  wise  nation  to  profit   by  the  lessons   of  experience? 


MEMORIAL    OF    THE    SALEM    MERCHANTS.  497 

Is  it  just,  is  it  salutary,  is  it  politic,  to  abandon  a  course,  which  has 
so  eminently  conduced  to  our  welfare,  for  the  purpose  of  trying 
experiments,  the  effect  of  which  cannot  be  fully  ascertained,  which 
are  founded  upon  merely  theoretical  doctrines,  at  best  complex  and 
questionable,  and,  it  may  be,  in  practice,  ruinous  as  well  to  morals 
as  to  property  ?  Suppose  it  were  practicable  to  arrest  the  present 
course  of  commerce,  to  narrow  its  limits,  and  even  to  reduce  it  to  the 
mere  coasting  trade  of  the  nation,  is  it  clear,  that  the  capital,  thus 
withdrawn  from  commercial  pursuits,  could  be  as  usefully  or  as 
profitably  employed  in  any  other  branch  of  business  ?  It  is  per- 
fectly certain,  that  such  a  change  must  be  attended  with  severe 
losses  to  the  merchants,  and  with  ruin  to  numerous  classes  of  our 
citizens,  to  our  seamen,  and  shipwrights,  and  other  artisans,  whose 
business  depends  on,  or  is  connected  with,  commerce.  Cases  may 
possibly  arise,  in  which  the  interests  of  a  respectable  portion  of  the 
community  may  be  justly  sacrificed  ;  but  they  are  cases  of  extreme 
public  necessity  ;  not  cases,  where  the  rivalry  and  the  interests  of 
one  class  of  men  seek  to  sustain  themselves  by  the  destruction  of 
another.  In  a  free  country,  too,  it  may  well  be  asked,  if  it  be  a 
legitimate  end  of  government  to  control  the  ordinary  occupations 
of  men,  and  to  compel  them  to  confine  themselves  to  pursuits,  in 
which  their  habits,  their  feelings,  or  their  enterprise,  forbid  them  to 
engage.  While  the  manufacturers  are  left  free  to  engage  in  their 
own  peculiar  pursuits,  enjoying,  in  common  with  others,  a  reasonable 
protection  from  the  government,  the  Memorialists  trust,  that  it  is  no 
undue  claim  on  their  own  part  to  plead  for  the  freedom  of  commerce 
also,  as  the  natural  ally  of  agriculture  and  naval  greatness.  Noth- 
ing, however,  can  be  more  obvious,  than  that  many  of  the  manu- 
facturers and  their  friends  are  attempting,  by  fallacious  statements, 
founded  on  an  interested  policy,  or  a  misguided  zeal,  or  very  short- 
sighted views,  to  uproot  some  of  the  fundamental  principles  of  our 
revenue  policy,  and  to  compel  our  merchants  to  abandon  some  of 
the  most  lucrative  branches  of  commerce  —  branches,  which  alone 
enable  us  to  contend  with  success  against  the  monopoly  and  the 
competition  of  foreign  nations. 

It  is  not  a  little  remarkable,  too,  that  these  attempts,  to  which 
the  Memorialists  allude,  are  not  only  repugnant  to  those  maxims 
of  free  trade,  which  the  United  States  have  hitherto  so  forcibly  and 
perseveringly  contended  for,  as  the  sure  foundation  of  national 
prosperity  ;  but  they  are  pressed  upon  us  at  a  moment,  when  the 
statesmen  of  the  Old  World,  in  admiration  of  the  success  of  our 
63 


498  POLITICAL    PAPKRS. 

policy,  are  relaxing  the  rigor  of  their  own  systems,  and  yielding 
themselves  to  the  rational  doctrine,  that  national  wealth  is  best 
promoted  by  a  free  interchange  of  commodities,  upon  principles  of 
perfect  reciprocity.  May  the  Memorialists  he  permitted  to  say, 
that  it  would  be  a  strange  anomaly  in  America  to  adopt  a  system, 
which  sound  philosophy  is  exploding  in  Europe ;  to  attempt  a 
monopoly  of  the  home  market,  and  yet  claim  an  entire  freedom  of 
commerce  abroad  ;  to  stimulate  our  own  manufactures  to  an  un- 
natural growth  by  the  exclusion  of  foreign  manufactures,  and  yet 
to  expect,  that  no  retaliatory  measures  would  be  pursued  by  other 
nations.  If  we  are  unwilling  to  receive  foreign  manufactures,  we 
cannot  reasonably  suppose,  that  foreign  nations  will  receive  our  raw 
materials.  We  may  force  other  nations  to  seek  an  inferior  market 
for  their  productions ;  but  we  cannot  force  them  to  become  buyers, 
when  they  are  not  sellers,  or  to  consume  our  cottons,  when  they 
cannot  pay  the  price  in  their  own  fabrics.  We  may  compel  them 
to  use  the  cotton  of  the  West  Indies,  or  of  the  Brazils,  or  of  the 
East  Indies,  or  the  wheat  of  the  Mediterranean,  an  experiment  in 
itself  sufficiently  dangerous  to  some  of  our  most  vital  interests ;  but 
we  cannot  expect  them  to  carry  on  with  us  a  ruinous  trade,  when 
the  profit  is  all  on  one  side.  Nations,  like  individuals,  will  pursue 
their  own  interests,  and  sooner  or  later  abandon  a  trade,  however 
fixed  may  be  its  habits,  where  there  is  no  reciprocity  of  benefit. 

There  is  another  consideration,  which  the  Memorialists  would 
respectfully  suggest,  that  is  entitled,  in  their  opinion,  to  great  weight 
on  questions  of  this  nature,  and  that  is,  the  dangers  and  inconven- 
iences, which  fluctuations  in  the  commercial  policy  of  a  nation 
unavoidably  produce.  The  trade  of  a  nation  is  of  gradual  growth, 
and  forms  its  channels  by  slow  and  almost  imperceptible  degrees. 
Time,  and  confidence,  and  protection,  and  experience,  are  neces- 
sary to  give  it  a  settled  course.  It  insinuates  itself  into  the  general 
commerce  of  the  world  with  difficulty  ;  and  when  incorporated  into 
the  mass,  its  ramifications  are  so  numerous  and  intricate,  that  they 
cannot  be  suddenly  withdrawn,  without  immense  losses  and  injuries. 
Even  the  temporary  stoppage  of  but  a  single  branch  of  trade  throws 
thousands  out  of  employment ;  and  by  pressing  the  mass  of  capital 
and  shipping,  which  it  held  engaged  in  its  service,  into  other 
branches,  it  is  sure  to  produce  embarrassment  and  depression,  and 
not  unfrequently  ruin  to  the  ship-holders  and  the  merchants.  Be- 
sides all  this,  men  are  slow  to  engage  their  capital  in  new  pursuits. 
They  have  a  natural  timidity  in  embarking  in  enterprises,  to  which 


MEMORIAL    OF    THE    SALEM    MERCHANTS.  499 

they  are  not  accustomed  ;  and,  if  the  commercial  policy  of  the 
nation  is  fluctuating,  they  feel  so  much  insecurity  in  it,  that  they 
are  unwilling  to  yield  themselves  up  even  to  prospects  apparently 
inviting.  No  nation  ever  prospered  in  commerce,  until  its  own 
policy  became  settled,  and  the  channels  of  its  trade  were  worn 
deep  and  clear.  It  is  to  this  state  of  things,  that  the  capitalist  looks 
with  confidence ;  because  he  may  conclude,  that,  if  his  profits  are 
but  small,  they  are  subject  to  a  reasonable  certainty  of  calculation. 
Another  state  of  things  may  suit  the  young  and  enterprising  specu- 
lators ;  but  it  can  never  be  safe  for  a  nation  to  found  its  revenue 
upon  a  trade,  that  is  not  uniform  in  its  operations.  The  Memori- 
alists most  sincerely  believe,  that  it  is  a  sound  political  maxim,  that 
the  more  free  trade  is,  and  the  more  widely  it  circulates,  the  more 
sure  will  be  its  prosperity,  and  that  of  the  nation.  Every  restric- 
tion, which  is  not  indispensable  for  purposes  of  revenue,  is  a  shoal, 
which  will  impede  its  progress,  and  not  unfrequently  jeopard  its 
security. 

Having  made  these  preliminary  observations,  which  they  cannot 
deem  unworthy  of  the  serious  attention  of  the  national  legislature, 
the  Memorialists  now  beg  leave  more  particularly  to  call  the  atten- 
tion of  Congress  to  the  measures,  which  have  been  recently  pro- 
posed, and  apparently  approved,  for  the  purpose  of  prohibiting  the 
introduction  of  foreign  woollen  and  cotton  goods,  and,  as  auxiliary 
thereto,  the  abolition  of  drawbacks  and  credits  upon  the  duties  due 
upon  goods  imported  into  the  United  States  ;  measures,  which,  if 
adopted,  will,  in  the  opinion  of  the  Memorialists,  bring  a  premature 
decay  and  a  general  distress  upon  the  whole  commercial  and  agri- 
cultural interests  of  the  nation. 

It  has  been  suggested,  both  in  and  out  of  Congress,  when  meas- 
ures have  been  heretofore  proposed,  having  a  direct  bearing  upon 
commercial  interests,  that  the  silence  of  merchants  ought  justly  to 
be  considered  as  an  acquiescence  in  the  justice  and  policy  of  such 
measures.  Truth  compels  the  Memorialists  to  say,  that  the  reverse 
has  generally  been  the  case.  The  merchants  of  our  country  have 
had  a  deep,  and,  it  is  hoped,  not  an  ill-founded  confidence,  in  the 
firmness,  the  wisdom,  and  enlightened  policy  of  Congress.  They 
have  not  been  prepared  to  suppose,  that  old  and  well  tried  and 
successful  systems  would  be  abandoned,  merely  because  they  were 
assailed  by  those,  whose  interests  or  whose  mistaken  zeal  led 
them  to  plan  their  overthrow.  They  have  believed,  (nor  is  it 
an   idle   or   vain   credulity,)  that  our  statesrnen,   selected   from  the 


500  POLITICAL    PAPERS. 

whole  community,  would  watch  with  anxiety  and  diligence  over  the 
interests  of  all ;  and  that  they  would  distinguish  the  natural  hiases 
of  those,  whose  judgments  were  blinded  by  a  partial  view  of  their 
own  interests,  from  the  just  influences  of  superior  political  foresight, 
aided  by  the  most  comprehensive  knowledge.    On  many  occasions, 
therefore,  in   which   their  interests  have  been   assailed,  and,  as  the 
Memorialists  think,  injuriously  assailed,  the   merchants  have  been 
silent,  not  from  indifference,  but  from  confidence  ;  not  from  a  sense 
of  propriety  and  justice,  but  from  a  proud  belief,  that  their  inter- 
ests were  safe,  when  they  were  understood  ;   and  that  the  national 
legislature   could  not   be  presumed  to  want  knowledge  or  inclina- 
tion to  protect  them.     On   the  present  occasion,  however,  so  wide 
have  been  the  exertions  of  the  manufacturers,  so  plausible  some  of 
their  statements,  and  so   popular,   though   delusive,  some  of  their 
doctrines,  that  the  Memorialists  feel  themselves  called  upon  to  resist 
them   in  the   most  serious  manner,  as  injurious  to  the  country,  and 
to  throw   themselves  upon   the   intelligence   and  firmness   of   the 
representatives  of  the  nation  to  vindicate  their  rights. 

The  subjects  of  drawbacks,  and  of  credit  upon  duties,  are  inti- 
mately connected  in  their  general  aspects ;  but  at  the  same  time 
admit  of  some  distinct  views,  which  may  well  entitle  them  to  sep- 
arate consideration.  Both  of  them  originated  at  the  earliest  period 
of  our  government,  and  were  incorporated  into  our  first  revenue 
laws.  Both  of  them  had  the  unequivocal  approbation  of  our  most 
enlightened  statesmen  of  that  day  ;  and  both  of  them  have  the 
sanction  of  nearly  thirty  years  of  experience  in  their  favor.  At 
no  period  of  our  political  history,  until  the  present,  has  any  doubt 
been  publicly  breathed,  at  least  to  the  knowledge  of  the  Memo- 
rialists, of  their  practical  advantages  ;  and  during  this  whole  period, 
our  commerce  has  been  progressively  increasing.  Almost  all  com- 
mercial nations,  too,  have  a  system,  analogous  to  ours,  engrafted  into 
their  revenue  regulations.  In  all,  it  is  believed,  a  discrimination  is 
made  between  goods  imported  for  home  consumption,  and  those 
designed  for  exportation ;  and  the  duties  on  the  latter  are  very 
trifling,  especially  when  compared  with  the  duties  usually  paid  on 
the  former.  In  respect  to  credit  for  duties,  the  known  equivalent 
is  the  deposit  of  the  goods  in  entrepot;  and  the  duties  are  paid 
only  after  a  limited  period,  or  upon  an  eventual  sale  in  the  domestic 
market.  In  Great  Britain,  to  whose  system  of  revenue  ours  bears 
the  strongest  resemblance,  imported  goods  are  warehoused  under 
the  joint  direction  and  keys  of  the  government  and  the  owner,  and 


MEMORIAL    OF    THE    SALEM    MERCHANTS.  501 

the  duties  are  in  general  paid,  when  they  are  disposed  of  in  the 
market.  This  system  of  deposit  is  exceedingly  expensive,  and 
onerous,  and  complicated,  and  requires  large  stores  in  every  com- 
mercial city,  and  numerous  officers,  and  is  attended  with  injurious 
delay.  Its  object  is  to  give  the  benefit  of  credit  to  the  merchant, 
and  it  has  that  effect  ;  but  it  is  at  a  heavy  expense  to  the  govern- 
ment. In  this  country  the  same  object  is  obtained,  at  a  very  small 
expense,  in  a  much  more  simple  way  ;  and  where  the  officers  of  the 
customs  act  with  prudence  and  vigilance,  the  risk  of  loss  to  the 
government  from  the  non-payment  of  the  bonds  given  with  sureties 
for  the  duties  is  small,  very  small  indeed,  compared  with  the  ex- 
pense of  the  other  system.  In  the  district  of  Salem  and  Beverly, 
the  whole  amount  remaining  unpaid  on  bonds  for  goods  imported, 
from  the  origin  of  the  government  to  the  present  time,  deducting 
the  debentures  due  and  unpaid  on  the  same  goods,  is  but  $1562.46; 
yet  that  district  alone  has  furnished  many  millions  to  the  revenue  of 
the  United  States. 

The  fact,  however,  that,  in  all  foreign  commercial  nations,  a  credit 
is  allowed  for  duties  upon  goods  imported,  and  a  drawback  is 
allowed  directly  or  indirectly  upon  exportation,  seems  to  justify, 
in  an  eminent,  degree,  the  opinion,  that  the  system  is  useful  to  the 
public,  and  salutary  to  commerce.  And  the  experience  of  this 
country  is  entirely  in  its  favor.  It  may,  then,  with  some  confidence 
be  asked,  Why  should  it  be  changed  ?  Why  should  we  leave  fact 
for  conjecture,  and  hazard  new  experiments  in  cases,  where  the 
great  objects  of  the  government  have  been  already  attained  ?  Why 
should  we  involve  the  immense  manufacturing,  agricultural,  and 
other  interests,  connected  directly  with  commerce,  in  distress  or 
ruin,  for  the  purpose  of  speculating  in  new  schemes,  ill  adapted  to 
the  state  of  our  country,  and  whose  success  is  yet  to  be  ascer- 
tained ?  It  appears  to  the  Memorialists,  that  it  is  incumbent  on 
those,  who  would  lead  the  nation  into  such  schemes,  to  demonstrate 
their  wisdom  and  policy  before  they  are  adopted ;  and  not,  by 
arithmetical  calculations  bottomed  on  visionary  notions,  to  call  upon 
the  nation  to  reject  the  lights  already  furnished  by  its  own  experi- 
ence. 

But  it  may,  perhaps,  be  inquired,  what  are  the  benefits  derived  to 
commerce  from  a  credit  upon  duties  ?  The  Memorialists  are  per- 
fectly willing  to  state  some  of  the  leading  benefits,  public  as  well 
as  private ;  for  in  this,  as  in  almost  all  the  like  cases,  public  and 
private  interest  go  hand  in  hand. 


502  POLITICAL    PAPERS. 

It  will  not  be  denied,  that  the  United  States,  even  at  the  present 
time,  does  not,  when  compared  with  the  great  nations  in  Europe, 
abound  in  monied  capital.  This  is  in  almost  every  nation  a  subject 
of  slow  accumulation,  even  under  circumstances  peculiarly  favora- 
ble to  its  growth.  But  in  a  young  nation,  the  obstacles  are  generally 
great,  from  the  character  and  various  pursuits  of  the  inhabitants, 
the  extent  of  their  wants,  and  the  rivalry  and  superior  advantages 
for  its  employment  presented  by  flourishing  nations.  At  the  time, 
when  the  United  States  adopted  its  system  of  credits  and  drawbacks 
on  duties,  its  monied  capital  was  very  small ;  and  the  great  policy 
of  the  government  was  to  give  every  facility  for  its  full  employ- 
ment. It  is  obvious,  that  the  more  capital  is  employed  in  com- 
merce, the  more  extensive  will  be  its  reach,  and  the  more  revenue 
will  be  acquired  by  the  government.  Whatever  of  capital,  natu- 
rally (lowing  in  this  channel,  is  withdrawn  from  it,  and  remains 
unemployed,  is  so  much  lost  to  the  commerce  of  the  country. 
The  duties  upon  the  importation  of  goods  is  on  an  average  at  least 
twenty-five  per  cent  of  the  value  of  those  goods,  or  of  the  capital 
employed.  It  follows,  that,  if  this" is  immediately  withdrawn  from 
the  funds  of  the  merchant,  it  is  so  much  loss  of  his  commercial 
capital.  A  little  detail  will  render  this  apparent.  Whenever  a 
voyage  is  undertaken,  the  merchant  invests  as  much  capital,  as  he 
thinks  necessary  for  the  purchase  of  the  goods  to  be  imported,  and 
also  as  much  more  as  will  be  necessary  to  meet  all  the  disburse- 
ments and  expenses  of  the  voyage.  All  this  is  paid  in  advance. 
When  the  goods  are  imported,  they  are  not  immediately  sold. 
The  market  may  be  depressed,  or  the  goods  be  of  slow  consump- 
tion, or  not  be  adapted  to  the  wants  of  this  country,  or  be  ultimately 
destined  for  a  foreign  market.  In  these  cases,  and  these  are  com- 
mon cases,  it  is  obvious,  that  no  immediate  sale  can  be  made  without 
great  sacrifices,  sacrifices,  which  are  wholly  inconsistent  with  any 
profitable  commerce.  Even  when  sales  are  effected,  they  are 
rarely  made  for  cash.  A  credit  is  almost  universally  allowed  to 
the  purchaser,  varying  according  to  the  nature  of  the  commodity 
and  the  demand  in  the  market,  from  four  to  eight,  and  even  twelve 
months.  Under  such  circumstances,  if  a  cash  payment  is  required 
for  the  duties,  it  is  obvious,  that  the  merchant  must  either,  in  an- 
ticipation of  this  demand,  gradually  withdraw  from  his  other  busi- 
ness a  portion  of  his  capital  equal  to  the  duties  ;  or  he  must  divert 
an  equal  portion  ready  to  be  employed  in  another  voyage;  or  he 
must  procure  money  upon  credit  from  other  sources,  loaded  with 


MEMORIAL    OF    TUB    SALEM    MERCHANTS.  503 

the  payment  of  interest ;  or  he  must  consent  to  make  enormous 
sacrifices  by  an  immediate,  forced  sale.  If  he  be  a  prudent,  cau- 
tious merchant,  this  very  circumstance  will  operate  to  prevent  him 
from  employing  his  whole  capital  in  commerce,  lest  he  should  be 
compelled  to  make  ruinous  sacrifices;  or,  by  a  mere  temporary- 
depression  of  the  market,  be  exposed  to  the  most  painful  embar- 
rassments. It  is  with  the  express  view  of  preventing  this  palsy 
upon  commercial  operations,  that  a  credit  upon  duties  has  been 
allowed  by  the  wise  and  great  men,  who  have  hitherto  governed 
our  country  ;  and  this  credit  is  carefully  adjusted  to  the  different 
portions  of  our  trade,  so  as  to  form  a  credit  equal,  in  a  general  view, 
to  the  time  consumed  and  credit  allowed,  before  the  merchant 
receives  his  money  upon  the  sales  of  the  goods,  upon  which  the 
specific  duties  have  accrued. 

In  confirmation  of  this  general  statement,  the  Memorialists  would 
respectfully  call  the  attention  of  Congress  to  the  East  India  Trade, 
a  trade  in  which  Salem  has  been  long,  and  deeply,  and  successfully 
engaged,  a  trade  too,  which,  however  decried  by  the  misguided 
zeal  of  some,  and  the  interested  suggestions  of  others,  has  largely 
contributed  to  the  revenue  of  the  United  States,  and  yields  not  in 
importance  to  any  other  branch  of  commerce.  Voyages  to  the 
East  Indies  are  undertaken  at  very  heavy  expense,  and  with  pro- 
portionably  large  capitals.  The  goods,  which  are  brought  home, 
consist  of  articles,  either  of  such  high  prices,  or  such  slow  consump- 
tion, or  of  such  bulk  and  quantity,  as  require  a  considerable  length 
of  time  before  they  can  be  sold  at  a  reasonable  profit,  and  the 
money  actually  realized  upon  the  sale.  The  home  market,  too,  for 
many  of  these  goods  is  so  limited,  that  ultimately  a  reexportation 
to  Europe  becomes  indispensable  ;  and  after  a  second  voyage  thus 
undertaken,  the  proceeds  find  their  way  by  a  circuitous  remittance 
to  England  ;  and  then  again,  before  the  merchant  can  realize  his 
funds,  he  must  have  notice  of  the  remittance,  and  be  able  to  sell 
his  exchange  at  a  reasonable  rate  in  the  market.  It  is  not  uncom- 
mon for  cargoes,  designed  for  home  consumption,  to  remain  on  hand 
for  six  months,  and  sometimes  a  twelvemonth  ;  and,  when  sales  are 
effected,  the  usual  credit  is  from  four  to  eight  and  twelve  months. 
So  that,  even  with  the  credit  for  duties  allowed  in  this  trade,  it 
usually  happens,  that  the  first  and  second  instalments  become  due 
before  the  proceeds  of  the  sales  have  been  realized,  and  not  un- 
frequently  before  the  cargoes  have  been  finally  disposed  of.  Yet  the 
duties  on  these  voyages  are  exceedingly  heavy,  amounting  in  some 


504  POLITICAL    PAPERS. 

cases  to  $100,000,  —  a  sum,  which  eVen  our  wealthiest  merchants 
could  not  readily  advance,  and  which  would  materially  check  even 
their  roiiiiiii  trial  expeditions.  It  is  not  too  much  to  declare,  that 
in  all  probability  an  abolition  of  the  credit  on  duties  would  imme- 
diately occasion  a  diminution  of  the  East-India  trade  one  quarter 
part;  and,  of  course  it  would  occasion  a  proportionate  diminution  of 
our  revenue,  and  of  employment  to  those,  whose  bread  is  as  hardly 
earned,  and  whose  lives  are  as  dear,  and  whose  welfare  is  as  impor- 
tant to  the  country,  as  those  of  the  manufacturers,  who  seek  to 
found  their  own  fortunes  upon  the  ruins  of  this  commerce. 

Some  of  the  ill  effects,  which  would  result  from  the  abolition  of 
this  credit,  will  lie  obvious  to  the  most  careless  observer.  There 
is  no  pretence  to  say,  that  there  is  a  superabundance  of  monied 
capital  in  our  country.  The  universal  opinion  proclaims,  in  a  man- 
ner too  audible  and  too  distinct  to  be  misunderstood,  that  much  of 
the  public  distress  arises  from  a  deficiency  of  capital.  The  first 
effect,  therefore,  of  the  abolition  of  this  credit,  would  be  a  diminu- 
tion of  active  capital  engaged  in  trade  and  yielding  a  profit.  It 
would  be  hoarded  up  to  meet  the  anticipated  demands  of  the  gov- 
ernment for  accruing  duties.  The  revenue  would,  as  has  been 
already  intimated,  immediately  sutler.  But  other  evils,  of  a  still 
graver  cast,  would  ensue.  Men  of  small  capitals  could  no  longer 
engage  in  trade;  and,  least  of  all,  in  trade,  where  the  voyages  are 
long,  and  the  returns  slow.  Capitalists,  and  they  alone,  could 
successfully  carry  on  the  great  branches  of  commerce ;  and  in  their 
hands  it  would  become  a  monopoly,  which  they  might  wield  and 
manage  at  their  own  pleasure.  The  young  and  enterprising  mer- 
chants would  be  crushed  in  their  attempts  at  competition,  and  would 
be  compelled  to  navigate  only  in  those  narrow  channels,  where 
trade  almost  stagnates,  or  yields  a  scanty  subsistence.  Another 
necessary  result  would  be  the  enhancement  of  the  prices  of  all 
foreign  articles  of  domestic  consumption.  The  merchant  would 
charge  an  interest  and  profit  upon  every  advance  made  to  the 
government  in  the  shape  of  duties  ;  and  thus  the  consumer,  upon 
whom  all  such  charges  ultimately  fall,  would  pay  these  additional 
charges,  together  with  the  enhanced  price,  which  a  smaller  impor- 
tation, with  an  equal  demand,  would  necessarily  produce.  These 
are  evils  of  no  ordinary  magnitude  ;  and  it  is  confidently  believed, 
that  no  wise  legislature  would  introduce  them  upon  mere  specula- 
tions, thus  taxing  the  w  hole  for  the  conjectural  benefit  of  the  few. 


MEMORIAL    OF    THE    SALEM    MERCHANTS.  505 

In  respect  to  drawbacks,  some  additional  considerations  seem 
necessary  to  be  stated,  inasmuch  as  the  subject  has  been  greatly 
misunderstood  by  some  of  those,  who  advocate  their  abolition. 
The  drawback  of  duties  is  allowed  upon  importations  of  goods  into 
the  country,  which  are  reexported  within  a  year  from  the  time  of 
their  entry.  The  object  of  the  system  is  to  increase  the  navigation 
and  commerce  of  the  country,  by  securing  to  our  citizens  a  carrying 
trade  between  distant  and  foreign  nations,  in  commodities,  which 
are  either  unsuitable  to  our  market,  or  of  which  a  great  surplus  is 
imported.  In  every  such  case,  the  government  derives  a  direct 
revenue  of  two  and  one  half  per  cent,  on  the  duties  of  the  reex- 
ported goods,  this  amount  being  always  retained.  This  is  a  positive 
benefit  to  the  government.  It  is  obvious,  that,  if  no  drawback 
were  allowed  upon  such  reexportation,  no  surplus  beyond  the  con- 
sumption would  ever  be  imported.  For,  upon  such  reexportation, 
the  goods  would  be  loaded  with  the  whole  duty,  and  the  merchant 
could  not  afford  to  sell  them  so  cheap  in  the  foreign  market  by  the 
full  amount  of  that  duty,  which  would  much  exceed  the  whole 
profit  reasonably  to  be  expected  upon  the  goods.  Under  such 
circumstances,  the  shipping  and  capital  of  foreign  merchants  would 
be  exclusively  engaged  in  the  carrying  trade,  and  all  the  benefits 
of  an  increased  employment  for  our  seamen,  our  shipwrights,  and 
our  ships,  including  freight  and  profits,  would  be  entirely  lost.  This 
is  stated  upon  the  supposition,  that  such  a  trade  could  not  be  carried 
on,  except  circuitously,  and  after  an  actual  importation  into  the 
United  States.  And  this  is  regularly  true  in  respect  to  the  whole 
trade  with  the  British  East  Indies,  from  which  we  are  not  permitted 
to  carry  on  any  trade  direct  to  Europe,  but  are  compelled  by  treaty 
to  land  the  goods  first  in  the  United  States. 

In  respect  to  the  other  portions  of  the  carrying  trade,  the  aboli- 
tion of  drawbacks  would  immediately  lead  to  a  direct  trade  between 
foreign  ports,  whenever  foreign  nations  would  permit  our  merchants 
to  engage  in  it.  This  would  compel  them  to  equip,  repair,  and  man 
their  ships  in  Europe,  and  thus  to  give  all  their  disbursements  in  this 
great  trade  to  foreigners.  No  goods  wrould  be  imported  into  the 
United  States  either  from  Europe  or  India,  which  were  not  indispen- 
sable for  our  consumption  ;  and  this  diminished  supply  of  the  home 
market  would  increase  speculation,  and  tend  to  produce,  in  a  very 
great  degree,  alternating  fluctuations  from  a  depressed  to  a  high  mar- 
ket. Commercial  adventures  would  be  thereby  rendered  more  hazar- 
dous and  precarious,  since  the  foreign  market  would  be  ordinarily  cut 
64 


506  POLITICAL    PAPERS. 

off  after  an  importation  into  the  United  States  ;  and  if  at  any  moment 
the  foreign  market  should  happen  to  be  so  high,  as  to  justify  an 
exportation,  an  artificial  scarcity,  far  beyond  what  can  now  ever 
arise,  would  immediately  ensue  in  the  United  States.  The  abolition 
of  drawbacks  would,  in  this  view,  operate  as  a  direct  tax  upon  the 
consumers  in  this  country.  It  would  diminish  the  productive 
revenue,  and  give  a  foreign  character  to  our  seamen  and  commerce, 
instead  of  concentrating  both,  as  their  home,  in  the  bosom  of  the 
country.  Nor  should  it  be  forgotten,  how  highly  important  the 
carrying  trade  has  hitherto  been,  and  how  much  it  has  increased 
our  monied  capital.  During  the  years  1H0-2,  1803,  and  1804,  the 
drawbacks  allowed  on  an  average  of  these  years  considerably 
exceeded  a  quarter  part  of  the  duties  secured  to  the  government. 
In  the  succeeding  years  1805,  1806,  and  1807,  they  constituted 
more  than  a  third  of  the  whole  duties.  So  that  on  an  average  of 
these  six  years,  the  three  last  of  which  were  the  most  prosperous 
years  of  our  commerce,  the  carrying  trade  constituted  nearly  one 
third  of  our  whole  foreign  commerce.  And  although  this  carrying 
trade  be  now,  from  the  general  state  of  the  world,  somewhat  dimin- 
ished, yet  it  still  remains  one  of  the  most  lucrative  branches  of  our 
commerce,  and  yields  a  steady  revenue  to  the  government. 

Under  this  aspect  of  the  subject,  the  Memorialists  would  respect- 
fully inquire,  whether  the  abolition  of  drawbacks  would  not  be  disas- 
trous to  the  most  important  interests  of  our  country,  and  dry  up  some 
of  the  best  sources  of  our  national  glory,  as  well  as  of  our  national 
wealth.  Let  it  be  considered  also,  that  the  policy  of  all  commercial 
nations  has  uniformly  dictated  the  same  course  ;  and  that  drawbacks, 
or  their  equivalent,  are  uniformly  held  out  as  an  encouragement  to 
importations  ;  and  thus  the  supply  is  always  kept  considerably  above 
the  domestic  consumption,  and  enterprise  and  industry  are  protected 
and  rewarded.  Will  America  be  the  first  to  abandon  a  policy,  by 
which  she  has  so  greatly  profited  ?  At  the  very  moment  when  her 
commerce  is  gasping  for  life,  from  the  accumulated  competitions  of 
foreign  nations,  zealous  for  their  own  interests,  will  she  aid  the  blows 
aimed  at  its  existence,  and  consign  it  to  a  premature  destruction  ? 

The  next  subject,  to  which  the  Memorialists  would  respectfully 
ask  the  attention  of  Congress,  is  a  measure  very  pertinaciously  and 
zealously  advocated  by  manufacturers  and  their  friends  —  they 
mean,  the  entire  prohibition,  either  directly  or  by  duties  equivalent 
to  a  prohibition,  of  the  importation  of  cotton  and  woollen  goods. 
That  the   tariff  of  duties   now  existing  is   singularly    favorable  to 


MEMORIAL    OF    THE    SALEM    MERCHANTS.  507 

manufacturers,  the  Memorialists  had  supposed  would  have  been 
freely  admitted.  Whatever  articles  are  useful  for  domestic  manu- 
factures pay  hut  a  trivial  duty  ;  whatever  articles  can  he  wrought 
here  are  loaded  with  a  heavy  duty,  varying  from  fifteen  to  thirty 
per  cent,  ad  valorem.  The  duty  upon  East  India  cottons  is  indeed 
enormous,  and  practically  amounts  to  a  total  prohibition.  The 
coarser  fabrics  of  cotton  in  the  British  East  Indies  cost  about  six 
cents  a  square  yard,  and  were  formerly  imported  in  large  quantities 
into  the  United  States,  and  supplied  the  poorer  classes  of  citizens 
with  necessary,  though  humble,  clothing.  The  tariff  directs  all  such 
cottons  to  be  estimated  at  the  cost  of  twenty-five  cents  per  square 
yard,  and  levies  upon  them,  therefore,  a  duty  of  one  hundred  per 
cent.,  or  a  sum  equal  to  their  original  cost.  During  the  years  1802, 
1803,  and  1804,  the  average  imports  from  the  British  East  Indies 
were  about  $ 3,500,000,  of  which  a  little  short  of  $3,000,000  were 
goods  paying  ad  valorem  duties,  being  principally  white  cotton 
goods.  In  1807,  the  goods  paying  ad  valorem  duties,  imported 
from  the  same  places,  had  increased  to  upwards  of  $4,000,000. 
In  the  same  year,  fifteen  ships  were  employed  in  this  trade  from  the 
town  of  Salem  alone.  In  the  past  year  two  ships  only  have  been  so 
employed  ;  and  for  the  four  years  last  past,  no  cotton  piece  goods 
have  been  imported  into  this  town  for  home  consumption,  the  duty 
alone  amounting  to  a  prohibition.  The  sacrifice  of  this  branch  of 
our  trade  alone  has  very  seriously  affected  the  whole  mercantile 
community  engaged  in  East  India  commerce,  and  has  no  where 
been  more  sensibly  or  injuriously  felt  than  in  Salem.  It  has  ope- 
rated, too,  as  an  excessive  tax  upon  the  poorer  classes  of  the  com- 
munity, who  have  been  compelled  to  buy  domestic  fabrics,  to  supply 
their  wants,  at  higher  prices,  which  their  narrow  means  could  ill 
afford.  It  has  also  annually  struck  off  from  the  revenue  of  the 
government  the  whole  duty  upon  seven  eighths  of  the  importations 
of  East  India  cotton  ;  that  proportion  having  been  absorbed  by  the 
domestic  consumption.  The  loss  to  our  ship-owners,  and  seamen, 
and  commercial  artisans,  has  been  proportionably  great.  And  the 
Memorialists  cannot  refrain  from  expressing  their  decided  convic- 
tion, that  this  sacrifice  was  not  called  for  by  the  public  interests  ; 
but  was  a  liberal  indulgence  granted  for  the  exclusive  benefit  of  the 
manufacturers,  and  pressed  upon  the  nation  by  their  importunate 
solicitations.  However  painful  this  measure  was,  it  was  borne  in 
silence,  under  the  hope,  that  experience  would  one  day  establish 
the  propriety  of  its  repeal ;  and  that  the  zeal  of  the  manufacturers 


508  POLITICAL.    PAPERS. 

would  be  satisfied  with  the  destruction  of  one  branch  of  commerce, 
and  the  heavy  duties  imposed  upon  all  others.  These  expecta- 
tions, however,  have  not  been  realized  ;  and  the  Memorialists 
now  learn  with  regret,  that  one  sacrifice  is  to  be  demanded  after 
another,  and  one  prohibition  heaped  upon  another,  by  the  friends 
of  manufactures,  until  all  the  sources  of  foreign  commerce  are 
dried  up,  and  domestic  manufactures,  sustained  by  enormous  boun- 
ties, absorb  the  whole  monied  capital  of  the  nation.  The  Memo- 
rialists would  most  respectfully,  but  most  solemnly,  protest  against 
the  policy  and  the  justice  of  such  mea-ures. 

And  what  are  the  claims,  the  Memorialists  beg  leave  respectfully 
to  ask,  of  any  one  class  of  our  citizens,  to  throw  such  enormous 
burdens  upon  the  other  classes  of  the  community?  Is  the  agricul- 
tural interest  nothing?  Is  the  commercial  interest  nothing?  Is  the 
interest  of  the  public  in  its  revenues  nothing?  The  cotton  and 
woollen  trade  is  already  loaded  with  twenty  and  twenty-five  per 
cent,  duties  ;  and  if  there  be  added  the  freight  and  charges  upon 
importation,  the  domestic  manufacturers  have  now  an  encourage- 
ment of  a  profit  of  from  thirty  to  thirty-five  per  cent,  more  than  the 
European  manufacturers  possess,  if  the  same  articles  can  be  manufac- 
tured as  cheap  at  home  as  they  are  abroad.  In  respect  to  the  East 
India  cotton  trade,  the  encouragement  is  still  more  striking,  the 
duties  upon  the  coarsest  fabrics  in  that  trade  amounting,  as  has 
been  already  seen,  to  one  hundred  per  cent,  upon  the  original  cost. 
And  if  cotton  and  woollen  goods  cannot  be  manufactured  here,  and 
sold  as  cheap,  with  all  these  differences  of  duty  in  their  favor,  does 
it  not  establish  the  conclusion,  that  such  manufactures  are  not  the 
natural  growth  of  our  present  situation,  and  are  not  adapted  to  the 
physical,  and  moral,  and  happy  condition  of  the  people  ?  Why 
should  the  farmer,  and  the  planter,  and  the  merchant,  and  the 
mechanic,  and  the  laboring  classes  of  the  community,  be  taxed 
for  the  necessaries  of  life  a  sum  equal  to  more  than  one  quarter 
part  of  their  whole  expenditures  on  these  objects,  that  the  manu- 
facturers may  put  this  sum  into  their  own  pockets  ? 

The  Memorialists  are  no  enemies  to  manufactures ;  but  they 
most  sincerely  express  it  as  their  deliberate  judgment,  that  no 
manufactures  ought  to  be  patronized  in  the  country,  which  will  not 
grow  up,  and  support  themselves,  in  every  competition  in  the  mar- 
ket, under  the  ordinary  protecting  duty  ;  that  the  only  manufac- 
tures, which  can  ultimately  flourish  here,  are  those,  which  are  of 
slow  growth,  and  moderate  profit ;  such  as  can   be  carried  on  by 


MEMORIAL    OF    THE    SALEM    MERCHANTS.  509 

capitalists  with  economy  and  steadiness ;  and  that  a  change  of  sys- 
tem, which  should  suddenly  introduce  great  profits,  by  encouraging 
undue  speculation,  and  the  expectation  of  inordinate  gain,  would 
end  in  the  deepest  injuries  even  to  manufacturing  establishments. 
The  history  of  the  cotton  manufactories  in  New  England  com- 
pletely demonstrates  the  truth  of  these  positions.  They  grew  up 
gradually  under  the  protection  of  our  ordinary  duties  in  a  time  of 
peace,  and  were  profitable  to  those  engaged  in  them.  J3ut  when 
the  embargo  and  non-importation  systems  produced  a  deficiency  in 
the  foreign  supply,  a  feverish  excitement  was  produced  ;  manufac- 
tories were  established  without  sufficient  capital  ;  extravagant  ex- 
penditures in  buildings  and  machinery  followed.  For  a  while  the 
demand  was  great  and  the  profits  high;  but,  upon  the  return  of  the 
ordinary  state  of  things,  many  of  these  establishments  sunk  one 
after  another,  and  involved  their  owners  in  ruin.  And  such,  in  the 
opinion  of  the  Memorialists,  would  be  the  scene  acted  over  again 
in  a  few  years,  if  the  manufacturers  could  now  succeed  in  accom- 
plishing their  present  objects.  For  a  short  time  their  establishments 
would  flourish.  But  in  a  free  country,  like  ours,  there  would  be  a 
reaction  of  the  other  great  interests  of  the  community  ;  and  the 
national  distress  and  national  policy  would  soon  require  a  repeal  of 
the  monopolizing  system.  A  moderate  protecting  duty  is  the  best 
support  of  domestic  manufactures,  for  the  very  reason,  that  it  may 
be  safely  calculated  on  as  permanent.  It  may  not  encourage  spec- 
ulation ;  but  it  will  encourage  the  employment  of  capital,  as  fast  as 
there  is  safety  and  a  reasonable  profit  connected  with  it. 

Nor  will  the  high  prices  and  eventual  insecurity  to  domestic 
manufactures  be  the  only  evils  attendant  upon  this  prohibitory 
system.  It  will  encourage  smuggling  and  frauds,  to  an  extent  truly 
formidable,  and  never  yet  practised  in  our  country  ;  and  the  same 
effect  will  arise,  though  in  a  more  limited  degree,  from  the  abolition 
of  drawbacks  and  credit  on  duties.  The  utter  impossibility  of 
suppressing  frauds  and  smuggling,  where  the  markets  are  very  high, 
and  the  prohibitions  very  extensive,  has  been  demonstrated  by  the 
experience  of  all  Europe.  During  the  most  rigorous  enforcement 
of  the  continental  exclusion  of  British  manufactures,  aided  by  civil 
vigilance,  and  military  bayonets,  and  despotic  power,  these  manu- 
factures found  their  way  into  every  part  of  Europe,  from  the 
cottage  to  the  throne.  Great  Britain  herself,  insulated  as  she  is, 
and  with  a  naval  force  adequate  to  every  object,  has  not  been  able 
to  suppress  smuggling.     Prohibited  goods  find  their  way  into  the 


510  POLITICAL    PAPERS. 

United  Kingdom,  notwithstanding  the  vigilance  of  her  custom- 
houses, and  the  unwearied  jealousy  of  her  manufacturers;  In  the 
United  States,  with  a  thousand  miles  of  seacoast,  indented  with 
innumerable  bays  and  harbours,  how  can  it  be  reasonably  expected, 
that  the  temptations  to  illicit  traffic  will  not  soon  outweigh  the  habits 
of  obedience  to  the  laws,  especially  when  those  laws  shall  become 
odious,  as  the  supposed  instruments  of  one  class  to  oppress 
another?  Hitherto,  our  country  has  exhibited  a  spectacle  not 
unworthy  of  a  free  people.  Frauds  upon  the  revenue  have  been 
comparatively  few  ;  and  smuggling  has  been  repressed  by  the  gen- 
eral sense  of  the  mercantile  community.  What  system  could  be 
more  disastrous  than  that,  which  should  hold  out  permanent  temp- 
tations to  smuggling,  connected  with  a  sense  of  the  impolicy  and 
injustice  of  the  laws?  The  Memorialists  believe,  that  one  of  the 
first  objects  of  legislation  ou<jht  to  be  to  make  laws  auxiliary  to  the 
preservation  of  the  morals  of  the  people,  by  interfering  as  little  as 
possible  with  pursuits  consonant  with  their  habits  and  feelings, 
useful  in  their  objects,  and  adapted  to  their  wants. 

Upon  the  whole,  the  Memorialists  would  respectfully  state  their 
unequivocal  opinion,  that  all  the  measures,  to  which  they  have 
alluded,  are  calculated  to  impair  our  naval  strength  and  glory  ;  to 
injure  our  most  profitable  commerce  ;  to  diminish,  in  an  alarming 
degree,  the  public  revenue  ;  to  promote  unjustifiable  speculation  ;  to 
enhance  the  prices  of  manufactures  ;  to  throw  the  great  business  and 
trade  of  the  nation  into  the  hands  of  a  few  capitalists,  to  the  exclu- 
sion of  the  industrious  and  enterprising  of  other  classes ;  to  intro- 
duce o-eneral  distress  among  commercial  artisans  and  agriculturists ; 
to  a^<rravate  the  present  distress  of  the  other  classes  of  the  com- 
munity ;  to  provoke  and  extend  an  undue  appetite  for  fraud  and 
smuggling  ;  and,  in  fine,  to  destroy  many  of  the  great  objects,  for 
which  the  constitution  of  the  United  States  was  originally  framed 
and  adopted. 

The  Memorialists,  therefore,  most  respectfully  ask  the  interposi- 
tion of  Congress  to  prevent  these  great  evils,  and  to  promote  the 
general  good  by  a  perseverance  in  that  system,  under  the  protection 
of  which  our  commerce,  and  navigation,  and  agriculture  have  flour- 
ished,—  a  system  conceived  in  political  wisdom,  justified  by  expe- 
rience, and  approved  by  the  soundest  maxims  of  national  economy. 


SKETCH 


OF  A  SPEECH  DELIVERED  IN  THE  CONVENTION  OF  MASSACHUSETTS  AS- 
SEMBLED TO  AMEND  THE  CONSTITUTION,  IN  NOVEMBER,  1820,  — ON  THE 
QUESTION  OF  THE  PROPER  BASIS  FOR  THE  APPORTIONMENT  OF  THE 
STATE   SENATORS.* 


We  are  at  length  arrived  at  the  discussion  of  those  questions, 
which  it  was  easy  to  foresee  would  be  attended  with  the  most 
serious  interest  and  difficulty  —  questions,  which,  indeed,  were  the 
principal  causes  of  assembling  this  convention.  Nor  do  I  regret  it. 
The  great  powers  of  eloquence  and  argumentation,  which  have 
already  been  displayed  in  the  debate,  1  trust  will  do  good  here,  and 
ultimately  reach  the  homes  of  our  constituents.  I  cannot  hope, 
after  the  very  ample  discussion,  which  the  subject  has  undergone, 
to  add  much  to  the  arguments,  and  shall  content  myself  with  such 
illustrations  of  my  own  views,  as  have  not  been  completely  presented 
by  others. 

If  it  were  necessary  for  my  purpose,  I  might  say,  with  the  gen- 
tleman from  Worcester,  that  I  come  here  pledged  to  no  man  or  set 
of  men,  or  to  any  settled  course  of  measures.  I  come  merely,  as 
the  delegate  of  one  town,  to  cooperate  with  other  gentlemen,  the 
delegates  of  other  towns,  in  such  measures,  as  the  public  good  may 
require ;  and  in  their  wisdom  and  discretion  I  place  entire  confi- 
dence. I  might  add,  also,  what  my  eloquent  colleague  has  already 
remarked,  that,  upon  this  particular  topic,  and  upon  the  grounds 
which  we  take,  we  are  not  in  a  situation  even  to  be  suspected  of 
interested  motives.  The  county  of  Essex  is  safe  at  present,  and 
would  have  a  fair  and  equal  representation  in  the  Senate,  whether  the 
principle  of  population  or  that  of  valuation  were  adopted  as  a  basis. 
If  population  were  assumed  as  a  basis,  and  no  restriction  were 
interposed,  it  is  highly  probable,   that   the  county   of  Essex  might 

*  This  is  a  mere  sketch,  taken  principally  by  the  reporter,  and  was  not 
written  out  at  large  by  the  speaker. 


512  POLITICAL.    PAPERS. 

hereafter  be  a  loser ;  but  upon  the  principle  of  valuation  it  could 
never  be  a  gainer,  since  it  would  now  have  the  whole  number,  to 
which  it  could  ever  be  entitled.  But  1  throw  away  all  narrow 
considerations  of  this  kind,  and  consider  myself  as  a  delegate  of  the 
Commonwealth,  bound  to  consult  for  the  interests  of  the  whole, 
and  to  form  such  a  constitution  as  shall  best  promote  the  interests 
of  our  children  and  of  all  posterity. 

It  is  necessary  for  us,  for  a  moment,  to  look  at  what  is  the  true 
state  of  the  question  now  before  us.  The  proposition  of  my  friend 
from  Roxbury  is,  to  make  population  the  basis  for  apportioning  the 
Senate  ;  and  this  proposition  is  to  be  followed  up,  as  the  gentleman, 
with  the  candor  and  frankness,  which  have  always  marked  his  char- 
acter, has  intimated,  by  another,  to  apportion  the  House  of  Rep- 
resentatives in  the  same  manner.  The  plan  is  certainly  entitled  to 
the  praise  of  consistency  and  uniformity.  It  does  not  assume  in 
one  house  a  principle,  which  it  deserts  in  another.  Those,  who 
contend,  on  the  other  hand,  for  the  basis  of  valuation,  propose 
nothing  new  ;  but  they  stand  upon  the  letter  and  spirit  of  the 
present  constitution. 

Here,  then,  there  is  no  attempt  to  introduce  a  new  principle  in 
favor  of  wealth  into  the  constitution.  There  is  no  attempt  to  dis- 
criminate between  the  poor  and  the  rich.  There  is  no  attempt  to 
raise  the  pecuniary  qualifications  of  the  electors,  or  the  elected  ;  to 
give  to  the  rich  man  two  votes,  and  to  the  poor  man  but  one.  The 
qualifications  are  to  remain  as  before  ;  and  the  rich  and  the  poor, 
and  the  high  and  the  low,  are  to  meet  at  the  polls  upon  the  same 
level  of  equality.  And  yet,  much  has  been  introduced  into  the 
debate  about  the  rights  of  the  rich  and  the  poor,  and  the  oppression 
of  the  one  by  the  elevation  of  the  other.  This  distinction  between 
the  rich  and  poor,  I  must  be  permitted  to  say,  is  an  odious  distinc- 
tion, and  not  founded  in  the  merits  of  the  case  before  us.  I  agree, 
that  the  poor  man  is  not  to  be  deprived  of  his  rights,  any  more  than 
the  rich  man  ;  nor  have  I  as  yet  heard  of  any  proposition  to  that 
effect;  and  if  it  should  come,  I  should  feel  myself  bound  to  resist 
it.  The  poor  man  ought  to  be  protected  in  his  rights,  not  merely 
of  life  and  liberty,  but  of  his  scanty  and  hard  earnings.  I  do  not 
deny,  tlrat  the  poor  man  may  possess  as  much  patriotism  as  the 
rich  ;  hut  it  is  unjust  to  suppose,  that  he  necessarily  possesses  more. 
Patriotism  ami  poverty  do  not  necessarily  march  hand  in  hand  ;  nor 
is  wealth  that  monster,  which  some  imaginations  have  depicted, 
with  a  heart  of  adamant,  and   a   sceptre  of  iron,   surrounded  with 


SPEECH  IN  MASSACHUSETTS  CONVENTION.        513 

scorpions,  stinging  every  one  within  its  reach,  and  planting  its  feet 
of  oppression  upon  the  needy  and  the  dependent.  Such  a  repre- 
sentation is  not  just  with  reference  to  our  country.  There  is  no 
class  of  very  rich  men  in  this  happy  land,  whose  wealth  is  fenced 
in  by  hereditary  titles,  by  entails,  and  by  permanent  elevation  to 
the  highest  offices.  Here,  there  is  a  gradation  of  property  from  the 
highest  to  the  lowest,  and  all  feel  an  equal  interest  in  its  preserva- 
tion. If,  upon  the  principle  of  valuation,  the  rich  man,  in  a  district, 
which  pays  a  high  tax,  votes  for  a  larger  number  of  senators,  the 
poor  man  in  the  same  district  enjoys  the  same  distinction.  There 
is  not,  then,  a  conflict,  but  a  harmony  of  interests  between  them. 
Nor  under  the  present  constitution  has  any  discontent  or  grievance 
been  seriously  felt  from  this  source. 

When  I  look  round,  and  consider  the  blessings,  which  property 
bestows,  I  cannot  persuade  myself,  that  gentlemen  are  serious  in 
their  views,  that  it  does  not  deserve  our  utmost  protection.  I  do 
not  here  speak  of  your  opulent  and  munificent  citizens,  whose 
wealth  has  spread  itself  into  a  thousand  channels  of  charity  and 
public  benevolence.  I  speak  not  of  those,  who  rear  temples  to  the 
service  of  the  Most  High  God.  I  speak  not  of  those,  who  build 
your  hospitals,  where  want,  and  misery,  and  sickness,  the  lame, 
the  halt,  and  the  blind,  the  afflicted  in  body  and  in  spirit,  may  find 
a  refuge  from  their  evils,  and  the  voice  of  solace  and  consolation, 
and  food,  and  medicine,  and  kindness.  I  speak  not  of  those, 
who  build  asylums  for  the  insane  ;  for  the  ruins  of  noble  minds  ; 
for  the  broken-hearted  and  the  melancholy  ;  for  those,  whom 
Providence  has  afflicted  with  the  greatest  of  calamities,  the  loss  of 
reason,  and,  too  often,  the  loss  of  happiness  ;  within  whose  walls  the 
screams  of  the  maniac  may  die  away  in  peace,  and  the  sighs  of  the 
wretched  be  soothed  into  tranquillity.  I  speak  not  of  these  ;  not 
because  they  are  not  worthy  of  all  praise ;  but  because  I  would 
dwell  rather  on  those  general  blessings,  which  property  diffuses 
through  the  whole  mass  of  the  community.  Who  is  there,  that  has 
not  a  friend  or  a  relative  in  distress,  looking  up  to  him  for  assistance  ? 
Who  is  there,  that  is  not  called  upon  to  administer  to  the  sick  and 
the  suffering ;  to  those  who  are  in  the  depth  of  poverty  and  distress ; 
to  those  of  his  own  household,  or  to  the  stranger  beside  the  gate  ? 
The  circle  of  kindness  commences  with  the  humblest,  and  extends 
wider  and  wider,  as  we  rise  to  the  highest  in  society  ;  each  person 
administering  in  his  own  way  to  the  wants  of  those  around  him. 
It  is  thus,  that  property  becomes  the  source  of  comforts  of  every 
65 


514  POLITICAL    PAPERS. 

kind,  and  dispenses  its  blessings  in  every  form.  In  this  way  it 
conduces  to  the  public  good  by  promoting  private  happiness  ;  and 
every  man,  from  the  humblest,  possessing  property,  to  the  highest 
in  the  state,  contributes  his  proportion  to  the  general  mass  of  com- 
fort. The  man  without  any  property  may  desire  to  do  the  same  ; 
but  he  is  necessarily  shut  out  from  this  most  interesting  charity. 
It  is  in  this  view,  that  I  consider  property  as  the  source  of  all  the 
comforts  and  advantages  we  enjoy  ;  and  every  man,  from  him,  who 
possesses  but  a  single  dollar,  up  to  him,  who  possesses  the  greatest 
fortune,  is  equally  interested  in  its  security  and  its  preservation. 

Government,  indeed,  stands  on  a  combination  of  interests  and  cir- 
cumstances. It  must  always  be  a  question  of  the  highest  moment, 
how  the  property-holding  part  of  the  community  may  be  sustained 
against  the  inroads  of  poverty  and  vice.  Poverty  leads  to  tempta- 
tion, and  temptation  often  leads  to  vice,  and  vice  to  military  despo- 
tism. The  rights  of  man  are  never  heard  in  a  despot's  palace. 
The  very  rich  man,  whose  estate  consists  in  personal  property,  may 
escape  from  such  evils,  by  flying  for  refuge  to  some  foreign  land. 
But  the  hardy  yeoman,  the  owner  of  a  few  acres  of  the  soil,  and 
supported  by  it,  cannot  leave  his  home  without  becoming  a  wan- 
derer on  the  face  of  the  earth.  In  the  preservation  of  property 
and  virtue,  he  has,  therefore,  the  deepest  and  most  permanent 
interest. 

Gentlemen  have  argued,  as  if  personal  rights  only  were  the 
proper  objects  of  government.  But  what,  I  would  ask,  is  life  worth, 
if  a  man  cannot  eat  in  security  the  bread  earned  by  his  own  indus- 
try ?  if  he  is  not  permitted  to  transmit  to  his  children  the  little 
inheritance,  which  his  affection  has  destined  for  their  use  ?  What 
enables  us  to  diffuse  education  among  all  the  classes  of  society,  but 
property?  Are  not  our  public  schools,  the  distinguishing  blessing 
of  our  land,  sustained  by  its  patronage  ? 

I  will  say  no  more  about  the  rich  and  the  poor.  There  is  no  par- 
allel to  be  run  between  them,  founded  on  permanent  constitutional 
distinctions.  The  rich  help  the  poor,  and  the  poor,  in  turn,  adminis- 
ter to  the  rich.  In  our  country,  the  highest  man  is  not  above  the  peo- 
ple ;  the  humblest  is  not  below  the  people.  If  the  rich  may  be  said 
to  have  additional  protection,  they  have  not  additional  power.  Nor 
does  wealth  here  form  a  permanent  distinction  of  families.  Those,  who 
are  wealthy  to-day,  pass  to  the  tomb,  and  their  children  divide  their 
estates.  Property  is  thus  divided  quite  as  fast  as  it  accumulates.  No 
family  can,  without  its  own  exertions,  stand  erect  for  a  long  time  under 


SPEECH    IN    MASSACHUSETTS    CONVENTION.  515 

our  statute  of  descents  and  distributions,  the  only  true  and  legitimate 
agrarian  law.  It  silently  and  quietly  dissolves  the  mass,  heaped  up 
by  the  toil  and  diligence  of  a  long  life  of  enterprise  and  industry. 
Property  is  continually  changing,  like  the  waves  of  the  sea.  One 
wave  rises,  and  is  soon  swallowed  up  in  the  vast  abyss,  and  seen  no 
more.  Another  rises,  and  having  reached  its  destined  limits,  falls 
gently  away,  and  is  succeeded  by  yet  another,  which,  in  its  turn, 
breaks,  and  dies  away  silently  on  the  shore.  The  richest  man 
among  us  may  be  brought  down  to  the  humblest  level ;  and  the 
child,  with  scarcely  clothes  to  cover  his  nakedness,  may  rise  to  the 
highest  office  in  our  government.  And  the  poor  man,  while  he 
rocks  his  infant  on  his  knees,  may  justly  indulge  the  consolation, 
that,  if  he  possess  talents  and  virtue,  there  is  no  office  beyond  the 
reach  of  his  honorable  ambition.  It  is  a  mistaken  theory,  that 
government  is  founded  for  one  object  only.  It  is  organized  for  the 
protection  of  life,  liberty,  and  property,  and  all  the  comforts  of 
society  ;  to  enable  us  to  indulge  in  our  domestic  affections,  and 
quietly  to  enjoy  our  homes  and  our  firesides. 

It  has  been  said,  that  the  Senate,  under  the  present  constitution, 
is  founded  on  the  basis  of  property.  This  I  take  to  be  incorrect. 
It  is  founded  on  the  basis  of  taxation.  It  gives  no  particular 
privileges  to  the  rich  ;  all  have  equal  rights  secured  by  it.  The 
gentleman  from  Worcester,  to  show  the  injustice  and  inequality  of 
the  present  system,  has  alarmed  us  with  a  reference  to  the  town  of 
Hull.  Suppose,  said  he,  five  of  the  richest  men  in  Boston  should 
remove  to  Hull,  that  removal  would  enable  Hull  to  have  six  Sena- 
tors. Is  this  the  case  ?  Is  Hull  a  county  ?  Does  it  constitute  a 
senatorial  district  ?  No ;  the  property,  thus  carried  from  Suffolk, 
would  be  transferred  to  the  county  of  Plymouth,  and  would  increase 
the  representation  of  that  county  proportionally  in  the  Senate  under 
a  new  valuation.  If,  instead  of  going  to  Hull,  the  same  persons 
should  remove  to  Salem,  their  property  would  not  produce  the 
slightest  effect ;  for  Essex,  without  it,  possesses  a  right  to  as  many 
Senators,  as  the  constitution  allows  to  any  district.  The  case  sup- 
posed by  the  gentleman  is  so  extreme,  that  it  could  scarcely  be 
supposed  to  exist ;  and,  if  it  did,  no  such  consequences  could  arise 
as  have  been  stated. 

It  has  been  also  suggested,  that  great  property,  of  itself,  gives  great 
influence  ;  and  that  it  is  unnecessary,  that  the  constitution  should 
secure  to  it  more.  I  have  already  stated  what  I  conceive  to  be  the 
true  answer ;  that  a  representation  in  the  Senate,  founded  on  a  valua- 


516  POLITICAL    PAPERS. 

tion  of  property,  is  not  a  representation  of  property  in  the  abstract. 
It  gives  no  greater  power  in  any  district  to  the  rich  than  to  the 
poor.  The  poor  voters  in  Suffolk,  may,  if  they  please,  elect  six 
Senators  into  the  Senate  ;  and  so,  throughout  the  Commonwealth, 
the  Senators  of  every  other  district  may,  in  like  manner,  be  chosen 
by  the  same  class  of  voters.  The  basis  of  valuation  was  undoubt- 
edly adopted  by  the  framers  of  our  constitution,  with  reference  to 
a  just  system  of  checks  and  balances,  and  the  principles  of  rational 
liberty.  Representation  and  taxation  should  go  hand  in  hand,  was 
the  doctrine  of  those  days  ;  a  doctrine,  for  which  our  fathers  fought 
and  bled,  in  the  battles  of  the  Revolution.  Upon  the  basis  of  valua- 
tion, property  is  not  directly  represented  ;  but  property  in  the  aggre- 
gate, combined  with  personal  rights.  Where  the  greatest  burden  of 
taxation  falls,  there  the  largest  representation  is  apportioned.  But 
still  the  choice  depends  upon  the  will  of  the  majority  of  voters,  and 
not  upon  that  of  the  wealthier  class  within  the  district.  There  is  a 
peculiar  beauty  in  our  system  of  taxation,  and  equalizing  the  public 
burdens.  Our  Governor,  Counsellors,  Senators,  Judges,  and  other 
public  officers  are  paid  out  of  the  public  treasury  ;  our  Represen- 
tatives by  their  respective  towns.  The  former  are  officers  for  the 
benefit  of  the  whole  Commonwealth.  But  the  right  of  sending 
Representatives  is  a  privilege  granted  to  corporations  ;  and,  as  the 
more  immediate  agents  of  such  corporations,  they  are  paid  by 
them.  The  travel,  however,  of  the  Representatives  is  paid  out  of 
the  public  treasury  ;  with  the  view,  that  no  unjust  advantage  should 
arise  to  any  part  of  the  Commonwealth,  from  its  greater  proximity 
to  the  capital.  Thus,  the  principle  of  equalizing  burdens  is  exem- 
plified. But  even  if  it  were  true,  that  the  representation  in  the 
Senate  is  founded  on  property,  I  would  respectfully  ask  gentle- 
men, if  its  natural  influence  would  be  weakened  or  destroyed  by 
assuming  the  basis  of  population  ?  I  presume  not.  It  would  still 
be  left  to  exert  that  influence  over  friends  and  dependents,  in  the 
same  manner,  that  it  now  does.  So  that  the  change  would  not  in 
the  slightest  degree  aid  the  asserted  object  ;  I  mean,  the  suppression 
of  the  supposed  predominating  authority  of  wealth. 

Gentlemen  have  argued,  as  though  it  was  universally  conceded, 
as  a  political  axiom,  that  population  is,  in  all  cases  and  under  all 
circumstances,  the  safest  and  best  basis  of  representation.  I  beg 
leave  to  doubt  the  proposition.  Cases  may  be  easily  supposed,  in 
which,  from  the  peculiar  state  of  society,  such  a  basis  would  be 
universally  deemed  unsafe  and  injurious.     Take  a  state,  where  the 


SPEECH    IN    MASSACHUSETTS    CONVENTION.  517 

population  is  such  as  that  of  Manchester  in  England,  (and  some 
states  in  our  Union  have  not  so  large  a  population,)  where  there 
are  five  or  ten  thousand  wealthy  persons,  and  ninety  or  one  hun- 
dred thousand  artisans,  reduced  to  a  state  of  vice,  and  poverty, 
and  wretchedness,  which  leave  them  exposed  to  the  most  dange- 
rous political  excitement.  I  speak  of  them,  not  as  I  know,  hut 
as  the  language  of  British  statesmen  and  parliamentary  proceed- 
ings exhibit  them.  Who  would  found  a  representation  on  such  a 
population,  unless  he  intended,  that  all  property  should  be  a  booty  to 
be  divided  among  plunderers?  A  different  state  of  things  exists  in 
our  happy  Commonwealth  ;  and  no  such  dangers  will  here  arise 
from  assuming  population  as  the  basis  of  representation.  But  still 
the  doctrine,  in  the  latitude  now  contended  for,  is  not  well  founded. 
What  should  be  the  basis,  on  which  representation  should  be 
founded,  is  not  an  abstract  theoretical  question  ;  but  it  depends  upon 
the  habits,  manners,  character,  and  institutions  of  the  people,  who 
are  to  be  represented.  It  is  a  question  of  political  policy,  which 
every  nation  must  decide  for  itself,  with  reference  to  its  own  wants 
and  circumstances. 

The  gentleman  from  Worcester  has  asserted,  that  intelligence  is 
the  foundation  of  government.  Are  not  virtue  and  morality  equally 
so?  Intelligence  without  virtue  is  the  enemy  most  to  be  dreaded 
by  every  government.  It  might  make  men  despots,  or  bandits,  or 
murderers,  if  their  interests  pointed  in  such  directions.  While, 
therefore,  it  may  be  admitted,  that  intelligence  is  necessary  for  a 
free  people,  it  is  not  less  true,  that  sound  morals  and  religion  are 
also  necessary.  Where  there  is  not  private  virtue,  there  cannot  be 
public  security  and  happiness. 

The  proposition  of  the  gentleman  from  Roxbury  is,  to  assume 
population  for  the  basis  of  both  houses.  That  of  the  gentleman 
from  Worcester  is  to  assume  population  for  the  Senate,  and  corpo- 
rate representation  for  the  House.  The  latter  gentleman  wishes 
his  last  proposition  to  be  considered  distinctly  from  the  first.  It 
might  suit  the  purposes  of  the  gentleman's  argument  so  to  separate 
them.  But  in  the  nature  of  things,  with  reference  to  the  doctrine 
of  checks  and  balances,  avowed  and  supported  by  the  gentleman 
himself,  they  are  inseparable.  I  feel  myself  constrained  so  to 
consider  them,  as  parts  of  a  system,  the  value  of  which  must  be 
ascertained  by  examining  the  effects  of  the  whole  combination.  I 
am  not  opposed  in  principle  to  population  as  a  basis  of  representa- 
tion.    There  is  much  to  recommend  it.     It  has  simplicity,  and 


518  POLITICAL    PAPERS. 

uniformity,  and  exemption  from  fraud  in  its  application  ;  circumstan- 
ces of  vast  importance  in  every  practical  system  of  government. 
In  the  Select  Committee,  1  was  in  favor  of  a  plan  of  representation 
in  the  House  founded  on  population,  as  the  most  just  and  equal 
in  its  operation.  I  still  retain  that  opinion.  There  were  serious 
objections  against  this  system,  and  it  was  believed  by  others,  that 
the  towns  could  not  be  brought  to  consent  to  yield  up  the  corpo- 
rate privileges  of  representation,  which  had  been  enjoyed  so  long, 
and  was  so  intimately  connected  with  their  pride  and  their  inter- 
ests. I  felt  constrained,  therefore,  with  great  reluctance  to  yield  up 
a  favorite  plan.  I  had  lived  long  enough  to  know,  that,  in  any 
question  of  government,  something  is  to  be  yielded  up  on  all  sides. 
Conciliation  and  compromise  lie  at  the  origin  of  every  free  govern- 
ment ;  and  the  question  never  was,  and  never  can  be,  What  is  abso- 
lutely best?  but,  What  is  relatively  wise,  just,  and  expedient?  I 
have  not  hesitated,  therefore,  to  support  the  plan  of  the  Select 
Committee,  as  one,  that,  on  the  whole,  was  the  best,  that,  under 
existing  circumstances,  could  be  obtained. 

To  the  plan  of  the  gentleman  from  Roxbury  two  objections 
exist.  The  first  is,  that  it  destroys  the  system  of  checks  and 
balances  in  the  government ;  a  system,  which  has  been  approved 
by  the  wisdom  of  ages.  The  value  of  this  system  has  been  forci- 
bly illustrated  by  the  gentleman  from  Boston,  in  the  extract,  which 
he  read  from  the  remarks  of  Mr.  Jefferson  on  the  constitution  of 
Virginia.  I  will  not,  therefore,  dwell  on  this  objection.  The  next 
objection  is,  that  it  destroys  all  county  lines  and  distinctions  ;  and 
breaks  up  all  habits  and  associations  connected  with  them.  They 
might  thus  be  broken  up  ;  but  it  would  be  by  tearing  asunder  some  of 
the  strongest  bonds  of  society.  The  people  of  each  county  are  drawn 
together  by  their  necessary  attendance  upon  the  county  courts,  and 
by  their  county  interests  and  associations.  There  is  a  common 
feeling  diffused  among  the  mass  of  the  population,  which  extends 
to,  but  never  passes,  the  boundary  of  each  county  ;  and  thus  these 
communities  become  minor  states.  These  are  valuable  associations ; 
and  I  am  not  prepared  to  say,  that  they  ought  to  be  given  up 
altogether.  The  system  of  the  gentleman  from  Roxbury,  however, 
not  only  obliterates  them  ;  but,  at  the  same  time,  is  supposed  to 
affect  the  interests  and  corporate  representation  of  the  towns ;  a 
representation,  which,  with  all  its  inconveniences,  possesses  intrinsic 
value.  It  appears  to  me,  that  the  system  of  the  Select  Committee, 
combining  valuation  of  property,  as  the  basis  of  the  Senate,   with 


SPEECH    IN    MASSACHUSETTS    CONVENTION.  519 

corporate  representation  of  the  towns,  as  the  basis  of  the  House,  has, 
both  as  a  system  of  checks  and  balances,  and  convenient  and  prac- 
tical distribution  of  powers,  some  advantages  over  that  now  under 
discussion. 

It  has  been  said,  that  the  system  of  valuation  is  novel,  and  cannot 
be  traced  beyond  the  era  of  the  formation  of  our  present  constitu- 
tion. It  may  be  so ;  though  the  venerable  gentleman  from  Quincy 
has  endeavoured  to  show,  that  it  is  in  principle  as  old  as  the  repub- 
lics of  Greece  and  Rome.  But  be  it  novel ;  it  is  no  objection  to 
it.  Our  whole  system  of  government  is  novel.  It  is  a  great 
experiment  in  the  science  of  politics.  The  very  principle  of  rep- 
resentation, and  the  theory  of  a  division  of  powers  are  of  modem 
origin,  as  are  many  of  our  dearest  and  most  valuable  institutions. 

It  is  asked,  too,  why,  if  the  principle  of  valuation  be  a  just  one, 
there  is  a  restriction,  that  no  district  shall  send  more  than  six  Sena- 
tors. A  sufficient  reason  has  been  already  given  ;  that  it  was  a 
compromise  to  silence  any  jealousy  of  an  undue  exercise  of  power 
by  any  particular  district  abounding  in  wealth.  My  answer  is,  that 
it  is  also  for  the  purpose  of  equalizing  the  fractions  of  the  smaller 
districts  with  the  great  districts.  The  same  principle  of  equaliza- 
tion was  provided  for  in  forming  the  House  of  Representatives,  and 
is  now  more  completely  observed  in  the  system  of  the  Select 
Committee. 

After  all,  what  will  be  the  effect  of  changing  the  basis  of  the 
Senate  from  valuation  to  that  of  population  ?  It  will  take  three 
Senators  from  Suffolk,  give  two  more  Senators  to  the  old  county  of 
Hampshire,  leave  Berkshire  and  Plymouth  to  struggle  for  one  more, 
and  Norfolk  and  Bristol  to  contend  for  another,  the  disposition  of 
which  maybe  doubtful.  All  the  rest  of  the  Commonwealth  will  remain 
precisely  in  the  same  situation  as  at  present,  whether  we  adopt  the 
one  basis  or  the  other.  Yet  even  this  change  will  not  produce  any 
serious  practical  result,  if  we  look  forward  twenty  years.  Suffolk 
has  increased,  within  the  last  ten  years,  ten  thousand  in  the  number 
of  its  inhabitants,  that  is  to  say,  one  quarter  part  of  its  population  ; 
a  much  greater  ratio  of  increase  than  the  rest  of  the  state.  Popu- 
lation will  probably,  from  the  like  causes,  continue  to  increase  on  the 
seaboard,  or  at  least  in  the  capital,  from  its  great  attractions,  in  a 
ratio  quite  as  great  beyond  that  of  the  interior.  So  that,  in  a  short 
time,  the  difference  of  the  two  systems  will  be  greatly  diminished  ; 
and  perhaps  finally,  the  inland  counties  will  gain  more  by  the 
restriction  of  the  districts  to  six  Senators,  than  they  will  now  gain 


520  POLITICAL    PAPERS. 

by  the  basis  of  population.     In  fifty  years,  Suffolk,  upon  this  basis, 
may  entitle  itself  not  to  six  only,  but  to  eight  Senators. 

Now,  I  would  beg  gentlemen  to  consider,  if,  in  this  view  of  the 
subject,  a  change  in  the  basis  of  the  Senate  can  be  useful  ?  The 
constitution  has  gone  through  a  trial  of  forty  years  in  times  of  great 
difficulty  and  danger.  It  has  passed  through  the  embarrassments 
of  the  revolutionary  war ;  through  the  troubles  and  discontents  of 
1787  and  1788 ;  through  collisions  of  parties  unexampled  in  our 
history  for  violence  and  zeal  ;  through  a  second  war,  marked  with 
no  ordinary  scenes  of  division  and  danger  ;  and  it  has  come  out  of 
these  trials,  pure,  and  bright,  and  spotless.  No  practical  inconven- 
ience has  been  felt,  or  attempted  to  be  pointed  out  by  any  gentle- 
man, in  the  present  system,  during  this  long  period.  Is  it,  then, 
wise,  or  just,  or  politic  to  exchange  the  results  of  our  own  experi- 
ence for  any  theory,  however  plausible,  that  stands  opposed  to  that 
experience  ?  for  a  theory,  that  possibly  may  do  as  well  ? 

A  few  words,  as  to  the  proposition  of  the  gentleman  from  Wor- 
cester for  representation  in  the  House.  It  seems  to  me,  I  hope 
the  gentleman  will  pardon  the  expression,  inconsistent,  not  only 
with  his  own  doctrine,  as  to  the  basis  of  population  ;  but  inconsistent 
with  the  reasoning,  by  which  he  has  endeavoured  to  sustain  that  doc- 
trine. The  gentleman  considers  population  as  the  only  just  basis 
of  representation  in  the  Senate.  Why,  then,  I  ask,  is  it  not  as  just, 
as  the  basis  for  the  House  ?  Here,  the  gentleman  deserts  his  favor- 
ite principle ;  and  insists  on  representation  of  towns,  as  corporations. 
He  alleges,  that  in  this  way  the  system  of  checks  and  balances 
(which  the  gentleman  approves)  is  supported.  But  it  seems  to  me, 
that  it  has  not  any  merit  as  a  check  ;  for  the  aggregate  population 
of  the  county  will  express  generally  the  same  voice,  as  the  aggre- 
gate Representatives  of  the  towns.  The  gentleman  has  said,  that 
the  poor  man  in  Berkshire  votes  only  for  two  Senators,  while  the 
poor  man  in  Suffolk  votes  for  six.  Is  there  not  the  same  objection 
against  the  system  of  representation  now  existing  as  to  the  House ; 
and  against  that  proposed  by  the  gentleman  himself?  A  voter  in 
Chelsea  now  votes  for  but  one  Representative,  while  his  neighbour, 
a  voter  in  Charlestown,  votes  for  six.  Upon  the  gentleman's  own 
plan  there  would  be  a  like  inequality.  He  presses  us  also,  in  refer- 
ence to  his  plan  of  representation  in  the  House,  with  the  argument, 
that  it  is  not  unequal,  because  we  are  represented,  if  we  have  a 
single  representative ;  and,  he  says,  he  distinguishes  between  the 
right  to  send  one,  and  to  send  many  Representatives.     The  former 


SPEECH    IN    .MASSACHUSETTS    CONVENTION.  521 

is  vital  to  a  free  government,  the  latter  not.  One  Representative 
in  the  British  Parliament  would  probably  have  prevented  the 
American  Revolution.  13c  it  so.  But  if  the  doctrine  be  sound, 
does  it  not  plainly  apply  as  well  to  the  Senate  as  to  the  House  ? 
If  it  be  not  unequal  or  unjust  in  the  House,  how  can  it  be  so  in  the 
Senate  ?  Is  not  Berkshire  with  its  two  Senators,  or  Barnstable 
with  its  one  Senator,  or  Worcester  with  its  four  Senators,  upon 
this  principle  just  as  fully  represented  in  the  Senate,  as  Suffolk  with 
its  six  Senators  ?  The  argument  of  the  gentleman  may  therefore 
be  thrown  back  upon  himself. 

The  gentleman  from  Worcester  has  illustrated  his  views,  by  a 
reference  to  the  structure  of  the  two  houses  under  the  constitution 
of  the  United  States ;  and  he  conceives  the  Senate  of  the  United 
States  as  analogous  to  his  system  of  representation  in  our  House, 
a  representation  of  corporations.  It  certainly  bears  no  analogy  to 
his  basis  of  representation  for  the  Senate.  I  take  it,  that  the  Sen- 
ate of  the  United  States  is  a  representation  of  sovereignties,  coor- 
dinate and  coequal,  and  in  no  respect  like  our  system,  either  of  the 
House  or  Senate ;  for  neither  towns  nor  districts  have  an  equal 
representation  here,  for  the  reason,  that  they  are  not  independent 
sovereignties.  But  when  we  come  to  the  House  of  Representatives 
of  the  United  States,  which  is  founded  on  the  basis  of  population, 
we  find,  that  it  is  accompanied  with  another  principle,  that  repre- 
sentation and  direct  taxation  shall  be  apportioned  according  to 
population.  Not  that  population  alone  shall  be  the  basis  ;  but  that 
they,  who  enjoy  the  right,  shall  also  bear  the  burden.  I  have  no 
objection  to  adopting  this  principle  here.  Let  Worcester  send  her 
six  Senators,  and  Berkshire  three  ;  and  let  them  consent,  also,  to 
bear  a  proportionable  share  of  the  public  taxes ;  and  then,  and  then 
only,  will  there  be  a  well  founded  analogy  to  the  constitution  of  the 
United  States.  I  thank  the  gentleman  for  his  illustration ;  an  argu- 
ment  more  pertinent  to  my  purpose  could  not  have  been  found. 

I  beg,  however,  for  a  moment,  to  ask  the  attention  of  the  com- 
mittee to  the  gross  inequalities  of  the  plan  of  the  gentleman  from 
Worcester,  respecting  the  House  of  Representatives.  There  are 
two  hundred  and  ninety-eight  towns  in  the  state,  each  of  which  is  to 
send  one  Representative.  And  upon  this  plan  the  whole  number 
of  Representatives  will  be  three  hundred  and  thirty-four.  There 
are  but  twenty-four  towns,  which  would  be  entitled  to  send  more 
than  one  Representative.  These  twenty-four  towns,  with  a  popula- 
tion of  one  hundred  and  forty-six  thousand,  would  send  fifty-eight 
66 


522  POLITICAL    PAPERS. 

Representatives,  or  only  one,  upon  an  average,  for  every  two  thousand , 
five  hundred,  and  twenty-six  inhabitants  ;  while  the  remaining  two 
hundred  and  seventy-four  towns,  with  a  population  of  three  hundred 
and  thirteen  thousand,  would  send  two  hundred  and  seventy-four 
Representatives,  or  one  for  every  one  thousand,  one  hundred,  and 
forty-four  inhabitants.  I  lay  not  the  rcmic  here  or  there  in  the 
Commonwealth,  in  the  county  of  Worcester,  or  the  county  of 
Essex ;  but  such  would  be  the  result  throughout  the  whole  Com- 
monwealth, taken  in  the  aggregate  of  its  population.  Salem  would 
send  one  Representative  for  every  three  thousand,  one  hundred,  and 
thirty  inhabitants  ;  and  Boston  one  for  every  four  thousand,  two  hun- 
dred inhabitants;  while  every  town, but  the  twenty-four  largest,  would 
send  one  for  every  one  thousand  one  hundred  and  forty-four  inhabi- 
tants. What,  then,  becomes  of  the  favorite  doctrine  of  the  basis 
of  population  ?  I  would  ask  the  gentleman,  in  his  own  emphatic 
language,  Is  not  this  system  unjust,  unequal,  and  cruel?  If  it  be 
equal,  it  is  so  by  some  political  arithmetic,  which  I  have  never 
learned,  and  am  incapable  of  comprehending. 

A  few  words  upon  the  plan  of  the  Select  Committee,  and  I  have 
done.  Sir,  I  am  not  entitled  to  any  of  the  merit,  if  there  be  any,  in 
that  plan.  My  own  plan  was  to  preserve  the  present  basis  of  the 
Senate,  not  because  I  placed  any  peculiar  stress  on  the  basis  of  valua- 
tion ;  but  because  I  deemed  it  all-important  to  retain  some  element, 
that  might  maintain  a  salutary  check  between  the  two  houses.  My 
own  plan  for  the  House  of  Representatives  was  representation, 
founded  on  the  basis  of  population  in  districts,  according  to  the 
system  proposed  by  the  gentleman  from  Northampton.  Finding 
that  this  plan  was  not  acceptable  to  a  majority  of  the  committee,  I 
acquiesced  in  the  plan  reported  by  it.  I  have  learned,  that  we 
must  not,  in  questions  of  government,  stand  upon  abstract  princi- 
ples;  but  must  content  ourselves  with  practicable  good.  I  do  not 
pretend  to  think,  nor  do  any  of  its  advocates  think,  that  the  system 
of  the  Select  Committee  is  perfect ;  but  it  will  cure  some  defects 
in  our  present  system,  which  are  of  great  and  increasing  importance. 
I  have  always  viewed  the  representation  in  the  House  under  the 
present  constitution,  as  a  most  serious  evil,  and  alarming  to  the 
future  peace  and  happiness  of  the  state.  My  dread  has  never  been 
of  the  Senate  ;  but  of  that  multitudinous  assembly,  which  has  been 
seen  within  these  walls,  and  may  again  be  seen,  if  times  of  political 
excitement  should  occur.  The  more  numerous  the  body,  the 
greater  the  danger  from  its  movements,  in  times,  when  it  cannot  or 


SPEECH  IN  MASSACHUSETTS  CONVENTION'.        528 

will  not  deliberate.     I  came  here,  therefore,   willing  and   ready  to 
make  sacrifices  to  accomplish  an   essential   reduction   in  that  body. 
It  was  the  only  subject  relative  to  the  constitution,  on  which  I  have 
always  had  a  decided  and    earnest  opinion.     It  was  my  fortune  for 
some  years  to  have  a  seat  in   our   House  of  Representatives  ;  and 
for  a  short  time  to  preside  over  its  sittings,  at  a  period,  when  it  was 
most  numerous,  and  under  the   most  powerful   excitements.     I  am 
sorry  to  say  it,  but  such  is  my  opinion,  that  in  no  proper  sense  could 
it  be  called  a  deliberative  assembly.     From  the  excess  of  numbers 
deliberation  became  almost  impossible  ;  and,  but  for  the  good  sense 
and  discretion  of  those,  who  usually   led  in  the   debates,   it   would 
have  been  impracticable  to  have  transacted  business  with  any  thing 
like  accuracy   or  safety.     That  serious   public  mischiefs   did  not 
arise,  from  the   necessary   hurry   and   difficulty   of   the  legislative 
business,  is  to  be  accounted  for,  only  from  the   mutual  forbearance 
and  kindness  of  those,  who  enjoyed   the   confidence  of  the  respec- 
tive parties.     If  the  state  should  go  on,  increasing  in  its  population, 
we  might  hereafter  have  eight  hundred,  or  nine  hundred,  Represen- 
tatives, according  to  the   present  system  ;  and,  in    times  of  public 
discontent,  all  the  barriers  of  legislation  may  be  broken  down,  and  the 
government  itself  be  subverted.     I  wish,  most  deeply  and  earnestly, 
to  preserve  to  my  native  state  a  deliberative  legislature,  where  the 
sound  judgment,   and   discretion,   and  sagacity  of  its  best  citizens 
may  be  felt,  and  heard,  and  understood,  at  all  times,  and  under  all 
circumstances.     I  should  feel  the   liberties   of  the   state  secure,  if 
this  point  were  once   fairly   gained.     I   would   yield   up   the  little 
privileges  of  my  own  town,  and   of  any   others,    that  our   children 
may  enjoy  civil,  religious,  and  political   liberty,   as   perfectly,  nay, 
more  perfectly  than  their  fathers.     With  these  views  I  am  ready  to 
support  the  report  of  he   Select   Committee,   not  in  part,  but  as  a 
whole,  as  a  system  ;  and  if  part  is   to  be  rejected,  1  do  not  feel 
myself  bound  to  sustain   the   rest.     Indeed,   upon  no  other  ground 
than  a  great   diminution   of  the   House   of  Representatives,   can  I 
ever  consent  to  pay  the  members  out  of  the  public  treasury.     For 
this  is  now  the  only  efficient  check  against  an  overwhelming  repre- 
sentation.    By  the  plan  of  the  Select  Committee,  the  small  towns 
are  great  gainers  ;  a  sacrifice   is   made   by  the  large  towns,  and  by 
them  only.     They  will   bear   a   heavier  portion  of  the  pay  of  the 
Representatives,  and  they  will  have  a  less  proportionate  representa- 
tion than  they  now   possess.     And   what   do   they   gain  in  return  ? 
I  may  say,  Nothing.     All  that   is  gained  is  public  gain ;  a  really 


524  POLITICAL    PAPERS. 

deliberative  legislature  ;  and  a  representation  in  the  Senate,  which 
is  in  fact  a  popular  representation,  emanating  from  and  returning  to 
the  people,  but  so  constructed,  that  it  operates  as  a  useful  check 
upon  undue  legislation,  and  as  a  security  to  property. 

I  hope,  that  this  system  will  be  adopted  by  a  large  majority, 
because  it  can  scarcely  otherwise  receive  the  approbation  of  the 
people.  I  do  not  know,  that  it  is  even  desirable,  that  the  people 
should,  nay,  1  might  go  further,  and  say,  that  the  people  ought  not 
to,  adopt  any  amendment,  which  comes  recommended  by  a  bare 
majority  of  this  Convention.  If  we  are  so  little  agreed  among 
ourselves,  as  to  what  will  be  for  the  future  public  good,  we  had 
much  better  live  under  the  present  constitution,  which  has  all  our 
experience  in  its  favor.  Is  any  gentleman  bold  enough  to  hazard 
the  assertion,  that  any  new  measure,  we  may  adopt,  can  be  more 
successful  ?  I  beg  gentlemen  to  consider,  too,  what  will  be  the 
effect,  if  the  amendments,  we  now  propose,  should  be  rejected  by 
the  people,  having  passed  by  a  scanty  majority.  We  shall  then 
revert  to  the  old  constitution  ;  and  new  parties,  embittered  by  new 
feuds,  or  elated  by  victory,  will  be  formed  in  the  state,  and  distin- 
guished as  Constitutionalists,  and  Anti-constitutionalists  ;  and  thus 
new  discontents  and  struggles  for  a  new  convention  will  agitate  the 
Commonwealth.  The  revival  of  party  animosities,  in  any  shape, 
is  most  deeply  to  be  deprecated.  Who  does  not  recollect  with 
regret  the  violence,  with  which  party-spirit  in  times  past  raged  in 
this  state,  breaking  asunder  the  ties  of  friendship  and  consanguinity  ? 
I  was  myself  called  upon  to  take  an  active  part  in  the  public  scenes 
of  those  days.  I  do  not  regret  the  course,  which  my  judgment 
then  led  me  to  adopt.  But  I  never  can  recollect,  without  the  most 
profound  melancholy,  how  often  I  have  been  compelled  to  meet,  I 
will  not  say  the  evil,  but  averted  eyes,  and  the  hostile  opposition  of 
men,  with  whom,  under  other  circumstances,  I  should  have  rejoiced 
to  have  met  in  the  warmth  of  friendship.  If  new  parties  are  to 
arise,  new  animosities  will  grow  up,  and  stimulate  new  resentments. 
To  the  aged  in  this  Convention,  who  are  now  bowed  down  under  the 
weight  of  years,  this  can,  of  course,  be  of  but  little  consequence  ; 
for  they  must  soon  pass  into  the  tranquillity  of  the  tomb.  To  those 
in  middle  life  it  will  not  be  of  great  importance ;  for  they  are  far 
on  their  way  to  their  final  repose  ;  they  have  little  to  hope  of  future 
eminence,  and  are  fast  approaching  the  period,  when  the  things  of 
this  world  will  fade  away.  But  we  have  youth,  who  are  just 
springing  into  life ;  we  have  children,  whom  we  love  ;  and  families, 


SPEECH    IN    MASSACHUSETTS    CONVENTION.  525 

in  whose  welfare  we  feel  the  deepest  interest.  In  the  name  of 
Heaven  let  us  not  leave  to  them  the  bitter  inheritance  of  our  con- 
tentions. Let  us  not  transmit  to  them  enmities,  which  may  sadden 
the  whole  of  their  lives.  Let  us  not,  like  Him  of  old,  blind,  and 
smitten  of  his  strength,  in  our  anger  seize  upon  the  pillars  of  the 
constitution,  that  we  and  our  enemies  may  perish  in  their  downfall. 
I  would  rather  approach  the  altar  of  the  constitution,  and  pay  my 
devotions  there;  and,  if  our  liberties  must  be  destroyed,  I,  for  one, 
would  be  ready  to  perish  there  in  defending  them. 


ADDRESS 


ON  RESIGNING  THE  SPEAKER'S  CHAIR    IN  THE  HOUSE  OF  REPRESENTATIVES 
OF  MASSACHUSETTS,  JANUARY  17,  1812. 


["COMMONWEALTH  OF  MASSACHUSETTS. 

"In  the  House  of  Representatives. 

"  Thursday,  164ft  January,  1812. 
"  The  Speaker  signified  that  his  duty  elsewhere  would  not  permit  him  to  officiate  in  the  House, 
after  to-morrow. 

"  Friday,  17th  January,  1812. 
"  On  motion  of  the  Hon.  Mr.  Bigelow,  of  Medford  — 

"  Resolved,  unanimously,  That  the  thanks  of  this  House  be  presented  to  the  Hon.  Joseph  Story, 
Esq.,  for  his  ahle,  faithful,  and  impartial  discharge  of  the  duties  of  the  chair,  during  the  present 
year. 

"  The  foregoing  Resolution,  being  passed  in  a  very  full  House,  and  by  the  Clerk  declared  to  be 
unanimous,  the  Speaker  rose  and  addressed  them  as  follows  :"] 

Gentlemen  of  the  House  of  Representatives, 
The  flattering  commendations,  recorded  in  your  recent  vote, 
claim,  in  return,  the  most  sincere  expressions  of  my  gratitude.  To 
the  good  opinion  of  my  fellow-citizens  I  could  never  pretend  an 
indifference ;  and  I  am  free  to  confess,  that  the  approbation  of  the 
Representatives  of  an  enlightened  people  could  not  have  been 
conveyed  in  a  manner,  better  calculated  to  excite  my  highest  sen- 
sibility. 

The  time  has  now  arrived,  when  it  becomes  necessary  for  me  to 
ask  your  indulgence  to  retire  from  the  chair,  which  your  suffrages 
heretofore  assigned  me.  On  this  occasion,  which  is  probably  the 
last,  on  which  I  shall  ever  have  the  privilege  to  address  you,  I  feel 
an  unusual  interest  mingled  with  inexpressible  melancholy.  I  have 
to  bid  farewell  to  many  distinguished  friendships,  which  have  been 
the  pride  and  pleasure  of  my  life.  With  many  of  you  I  have,  for 
a  series  of  years,  shared  the  labors  and  the  duties  of  legislation, 
sometimes  with  success,  and  sometimes  with  defeat.  With  all  of 
you  I  have  rejoiced  to  cooperate  in  support  of  the  character  and 
principles  of  our  native  state  —  a  state,  which  was  the  cradle,  and, 
I  trust  in  God,  will  be  the  perpetual  abode,  of  liberty. 

May  I  be  permitted  to  add,  that,  during  the  period,  in  which  I 
have  had  the  honor  to  preside  over  your  deliberations,  the  manly 
confidence,  the  elevated  candor,  and  the  invariable  decorum  of 
the  House,  have  smoothed  a  seat,  which,  though  adorned  with 


ADDRESS    ON    RESIGNING    THE    SPEAKER'S    CHAIR.  527 

flowers  and  honors,  is  to  the  ingenuous  mind  the  thorny  pinnacle 
of  anxiety  and  toil.  Cheered,  indeed,  by  your  kindness,  I  have 
been  able,  in  controversies  marked  with  peculiar  political  zeal,  to 
appreciate  the  excellence  of  those  established  rules,  which  invite 
liberal  discussions,  but  define  the  boundary  of  right,  and  check  the 
intemperance  of  debate.  I  have  learned,  that  the  rigid  enforce- 
ment of  these  rules,  while  it  enables  the  majority  to  mature  their 
measures  with  wisdom  and  dignity,  is  the  only  barrier  of  the  rights 
of  the  minority  against  the  encroachments  of  power  and  ambition. 
If  any  thing  can  restrain  the  impetuosity  of  triumph,  or  the  vehe- 
mence of  opposition  —  if  any  thing  can  awaken  the  glow  of  ora- 
tory, and  the  spirit  of  virtue  —  if  any  thing  can  preserve  the  cour- 
tesy of  generous  minds,  amidst  the  rivalries  and  jealousies  of  con- 
tending parties,  —  it  will  be  found  in  the  protection,  with  which  these 
rules  encircle  and  shield  every  member  of  the  legislative  body. 
Permit  me,  therefore,  with  the  sincerity  of  a  parting  friend,  earn- 
estly to  recommend  to  your  attention  a  steady  adherence  to  these 
venerable  usages. 

Called,  as  I  now  am,  to  act  in  other  scenes,  I  cannot  but  feel  the 
deepest  humility  in  weighing  my  own  deficiencies,  and  the  new 
responsibility  imposed  upon  me ;  at  the  same  time  I  cannot  but 
recollect,  that  I  leave  my  legislative  associates  amidst  perils,  which 
may  truly  be  said  to  try  men's  souls.  I  am  not  unconscious  of  the 
difficulties,  which  surround  the  public  councils ;  nor  of  the  gloom 
and  the  silence,  which  presage  approaching  storms.  Many  of  the 
revolutionary  worthies  of  our  native  state,  to  whom  we  might  look 
for  support,  are  gathered  to  their  fathers.  I  might  mention  the 
names  of  Bowdoin,  Hancock,  Adams,  and  Sumner,  and  embrace 
no  very  distant  period.  Within  my  own  short  political  life,  the 
tomb  has  closed  over  the  generous  Knox,  the  intrepid  Lincoln,  the 
learned  Dana,  and  the  accomplished  Sullivan.  But  the  fame  of 
their  achievements  has  not  passed  away  ;  the  laurels  yet  freshen 
and  repose  on  their  sepulchres ;  and  the  memory  of  their  deeds 
will  animate  their  children  boldly  to  dare,  and  gloriously  to  con- 
tend for  their  injured  country.  I  persuade  myself,  that  the  flame 
kindled  in  the  Revolution  will  burn  with  inextinguishable  splendor; 
that,  when  the  voice  of  the  nation  shall  call  to  arms,  this  hall  will 
witness  an  heroic  firmness,  an  eloquent  patriotism,  and  a  devotion 
to  the  public  weal,  which  have  not  been  exceeded  in  the  annals  of 
our  country. 


Note  to  Page   100. 

Since  this  volume  was  printed,  I  have  been  furnished  with  a  copy 
of  the  deed  of  the  "Tutors'  Lot,"  so  called,  referred  to  on  page  400,  by 
John  Bulkley.  It  is  dated  20th  of  December,  1645;  and  contains  a 
grant  of  a  quarter  part  of  an  orchard  or  lot,  owned  in  common  with 
three  other  persons,  to  President  Dunster,  during  his  continuance  in 
the  office  of  President  of  the  College  ;  and  after  his  resignation  or 
death,  it  is  given  to  the  College.  "  Turn  velim,"  says  the  grant,  "ut 
Collegium  tanquam  Xvxniv  tenue  ab  alumno  maxime  benevolo  sibi  in 
perpetuum  appropriaret."  There  is  not  the  slightest  allusion  to  any 
particular  use,  to  which  it  was  to  be  specially  applied.  It  was  most 
probably  called  "Tutors'  Lot,"  because  some  of  the  owners  then  were, 
or  afterwards  became,  Tutors  ;  or  the  Lot  was  occupied  by  Tutors 
under  the  College.  Of  the  then  four  owners,  three  received  their 
education  at  the  College  ;  namely,  George  Downing,  John  Alcock,  and 
John  Bulkley. 


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